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HORNBOOK CASE SERIES 


ILLUSTRATIVE CASES 

ON 

CONSTITUTIONAL LAW 


By JAMES PARKER HALL, A.B., LL.B. 

Professor of Law and Dean of the Law School 
IN THE University of Chicago 


A COMPANION BOOK 

TO 

BLACK ON CONSTITUTIONAL LAW (3d Ed.) 


ST. PAUL 

WEST PUBLISHING CO. 
1914 




TK265 

.Hf 


Copyright, 1914 

BY 

WEST PUBLISHING COMPANY 
(Hall Cases Const.L.) 



Gift 

Miller and Chevalier 
Dec. 30,1937 


THE HORNBOOK CASE SERIES 


It is the purpose of the publishers to supply a set of Illustrative 
Casebooks to accompany the various volumes of the Hornbook Series, 
to be used in connection with the Hornbooks for instruction in the 
classroom. The object of these Casebooks is to illustrate the prin¬ 
ciples of law as set forth and discussed in the volumes of the Horn¬ 
book Series. The text-book sets forth in a clear and concise manner 
the principles of the subject; the Casebook shows how these princi¬ 
ples have been applied by the courts, and embodied in the case law. 
With instruction and study along these lines, the student should se¬ 
cure a fundamental knowledge and grasp of the subject. The cases 
on a particular subject are sufficiently numerous and varied to cover 
the main underlying principles and essentials. Unlike casebooks 
prepared for the “Case Method’^ of instruction, no attempt has been 
made to supply a comprehensive knowledge of the subject from the 
cases alone. It should be remembered that the basis of the instruc¬ 
tion is the text-book, and that the purpose of these Casebooks is to 
illustrate the practical application of the principles of the law. 

We:st Pubushing Company. 

(iii)* 










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TABLE OF CONTENTS 


Page 

AMENDMENT OF STATE CONSTITUTIONS. 1 

CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS.... 8 

THE THREE DEPARTMENTS OF GOVERNMENT . 18 ' 

THE FEDERAL EXECUTIVE . 85 

JURISDICTION OF FEDERAL COURTS. 43 

POWERS OF CONGRESS— 

I. General Principles . 74 

II. Various Enumerated Powers . 96 

III. Commercial Powers . 109 

INTERSTATE LAW OF THE CONSTITUTION. 191 

ESTABLISHMENT OF REPUBLICAN GOVERNMENT . 203 

STATE EXECUTIVE POWER . 203 

STATE JUDICIAL POWER . 203 

STATE LEGISLATIVE POWER . 204 

THE POLICE POWER— 

I. In General . 209 

II. Scope and Limits of Power . 214 

POWER OF TAXATION— 

I. Independence of Federal and State Governments. 274 

II. Jurisdiction and Public Purpose . 291 

III. Classification for Taxation . 310 

RIGHT OF EMINENT DOMAIN— 

I. In General . .324 

II. Public Purpose . 329 

III. Taking and Injuring Property . 338 

CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS— 

I. Liberty . 361 

II. Equal Protection of the Laws.370 

III. Due Process of Law. 398 

POLITICAL AND PUBLIC RIGHTS . 417 

EX POST FACTO LAWS . 438 

LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS.447 

RETROACTIVE LAWS . 492 

APPENDIX . 497 

Hall Cases Const.L. (v)* 































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TABLE OF CASES 


Page 


Adair v. United States . 256 

Allen V. Pullman’s Palace Car Co. 162 

Allgeyer v. State of Louisiana.... 361 

Austin V. State of Tennessee ... 204 

Ayers, In re . 53 

Bailey v. State of Alabama.364 

Ball, The Daniel . 124 

Barbier v. Connolly .381 

Blake v. McClung. 191 

Borgnis v. Falk Co. 16 

California v. Central Pac. R. Co. 282 

Carter v. Commonwealth of Vir¬ 
ginia . 21 

Charles River Bridge v. Warren 

Bridge . 479 

Chicago V. Netcher.234 

City of Chicago v. Netcher.234 

Civil Rights Cases . 373 

Clark V. Nash . .335 

Coe V. Errol . 168 

Collector, The, v. Day . 279 

Commonwealth of Massachusetts 

V. Strauss . 267 

Cooley V. Board of Wardens of 
Philadelphia. 120 

Daniel Ball, The. 124 

Dartmouth College v. Woodward 468 

Dent V. State of West Virginia 

231, 416 


Eaton V. Boston, C. & M. R. R... 338 

Fairchild v. City of St. Paul.324 

Fallbrook Irr. Dist. v. Bradley.. 300 

Fauntleroy v. Lum . 199 

Fletcher v. Peck . 457 

Flint V. Stone Tracy Co.101, 287 

Galveston, H. & S. A. R. Co. v. 

State of Texas. 165 

Gibbons v. Ogden.76, 109 

Gilman v. City of Philadelphia.. . 147 
Goshen v. Inhabitants of Stoning- 

ton . 492 

Green v. Neal’s Lessee. 63 

Gulf, C. & S. F. R. Co. V. Ellis. . 383 

Hagar v. Reclamation Dist. No. 

108 . 406 


Page 


Hatch, People ex rel., v. Reardon 310 

Hans V. State of Louisiana. 47 

Hawker v. People of New York.. 442 

Head v. Amoskeag Mfg. Co. 263 

Hurtado v. State of California.. 398 
Hyatt V. State of New York ex 
rel. Corkran . 201 

Inhabitants of Goshen v. Inhab¬ 
itants of Stonington.492 

International Text-Book Co. v. 

Pigg .US 

Jacobson v. State of Massachu¬ 
setts . 218 

Kansas v. State of Colorado ... 59, 91 

Kelly V. City of Pittsburgh.320 

Koehler v. Hill. 1 

Kuhn V. Fairmont Coal Co. 69 

Lake Shore & M. S. R. Co. v. 
State of Ohio ex rel. Lawrence 211 

Legal Tender Cases . 86 

Leisy v. Hardin . 179 

L’Hote V. City of New Orleans.. 214 

License Cases . 210 

Lindsley v. Natural Carbonic Gas 

Co.387 

Loan Ass’n v. City of Topeka .... 297 
Lochner v. State of New York.. . 245 
Long Island Water Supply Co. v. 

City of Brooklyn.326 

Lottery Case. 14.3 

Luther v. Borden.38, 203 

Luxton V. North River Bridge Co. 136 

McCray v. United States. 96 

McCulloch V. State of Maryland 

77, 274 

McLean v. State of Arkansas.... 253 

Marbury v. Madison. 8 

Massachusetts v. Strauss . 267 

Maxwell v. Dow. 429 

Merrill v. Sherburne . IS 

Mississippi v. Johnson.35, 203 

Monongahela Nav. Co. v. United 

States . 94 

Mugler V. State of Kansas. 223 

Muller V. State of Oregon.395 

Munn V. State of Illinois.236 

Mutual Loan Co. v. Martell.209 


(vii) 


Hall Cases Const.L. 


























































Vlll 


TABLE OP CASES 


Page 

New Orleans Gas Co. v. Louisiana 

Light Co. 464 

New Orleans Waterworks Co. v. 

Louisiana Sugar Refining Co... 447 
Noble State Bank v. Haskell .... 260 
Northern Securities Co. v. United 


States . 150 

Norwood V. Baker. 315 

Ogden V. Saunders .4.52 

Opinion of the Justices .306 

Osborn v. President, etc., of Bank 

of United States . 43 

Otis V. Parker . 216 

Paul V. State of Virginia . 117 


People ex rel. Hatch v. Reardon 310 
Philadelphia & Southern Mail S. 

S. Co. V, State of Pennsylvania 158 
Piqua Branch of State Bank of 

Ohio v. Knoop . 484 

Plessy V. Ferguson . 393 

Plumley v. State of Massachusetts 187 

Pope V. Williams . 435 

Powell V. State of Pennsylvania 228 

Rahrer, In re. 184 

Railroad Co. v. Peniston.283 

Rapier, In re.105, 213 

Rigney v. City of Chicago .357 

Robbins v. Shelby County Taxing 
Dist. 172 

San Diego Land & Town Co. v. 

National City . 242 

Sauer v. City of New York.350 

Sawyer v. Davis . 347 

Second Employers’ Liability Cases 

139, 214 

Sharpless v. City of Philadelphia 

12, 204 


Page 

Smith V. St. Louis & S. W. R. Co. 126 

Southern R. Co. v. King. 178 

Southern R. Co. v. United States 138 
State of California v. Central 

Pac. R. Co.282 

State of Kansas v. State of Colo¬ 
rado .59, 91 

State of Mississippi v. .Johnson.. 

35, 203 

State of Virginia, Ex parte. 370 . 

Stone V. State of Mississippi.... 461 
Strauder v. State of West Virginia 390 
Swift V. Tyson . 67 

Talbot V. Hudson. 329 

Thompson v. State of Missouri... 438 
Trustees of Dartmouth College v. 

Woodward .468 

Twining v. State of New Jersey.. 409 

Union Refrigerator Transit Co. v. 

State of Kentucky. 291 

United States v. Cruikshank. 74 

United States v. De Witt. 93 

United States v. Gettysburg Elec¬ 
tric R. Co. 106 

United States v. Pleinszen .495 

United States v. Ju Toy. 414 

United States v. Wong Kim Ark.. 417 

Village of Norwood v. Baker.... 315 

Virginia, Ex parte.370 

Von Hoffman v. City of- Quincy.. 487 

Wabash, St. L. & P. R. Co. v. 

State of Illinois . 131 

Welton V. State of Missouri. 155 

Western Union Tel. Co. v. Myatt 26 

Yick Wo V. Hopkins.270 


J 






































HORNBOOK CASES 

ON 

CONSTITUTIONAL LAW 


AMENDMENT OF STATE CONSTITUTIONS ^ 


KOEHLER V. HILL. 

(Supreme Court of Iowa, 1883. 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609.) 

[Appeal from Scott County District Court. The Constitution of 
Iowa provided that proposed amendments thereto should be agreed 
to by two successive sessions of the General Assembly and then 
submitted to the people for ratification, and should become a part of 
the Constitution when approved by a majority of the qualified 
electors voting thereon. A proposed amendment, which purported 
to have been agreed to by the Eighteenth General Assembly, ap¬ 
peared enrolled and signed as follows: ^‘No person shall manufac¬ 
ture for sale, or sell, or keep for sale, as a beverage, any intoxicat¬ 
ing liquor whatever, including ale, wine, and beer.” This proposed 
amendment was also agreed to by the Nineteenth General Assem¬ 
bly and was ratified by a majority of 30,000 of the electors. It ap¬ 
peared from the journals of the senate of the Eighteenth General 
Assembly that the resolution actually agreed to by that body con¬ 
tained the words “or to be used” after the word “beverage,” though 
the enrolled resolution signed by the president of the senate omit¬ 
ted these words. In an action by plaintiffs to recover for beer sold 
and delivered to defendant, it was held that the senate journals 
might be examined to contradict the enrolled resolution, and that 
the proposed amendment never legally became a part of the Con¬ 
stitution. The defendant appealed, and the state Supreme Court 
affirmed the decision (Beck, J., dissenting). On a petition for re¬ 
hearing the following opinion was given:] 

Day, C. J. * * * It is asserted in the petition for rehearing 

1 For discussion of principles, see Black, Const Law (3d Ed.) §§ 28, 29. 

Hall Cases Const.L.— 1 




2 


AMENDMENT OF STATE CONSTITUTIONS 


that ^‘the judicial department of the state has no jurisdiction over 
political questions, and cannot review the action of the Nineteenth 
General Assembly, and of the people, in the matter of the adoption 
or amendment of the Constitution of the state. This position 
practically amounts to this: that the provisions of the Constitution 
for its own amendment are simply directory, and may be disre¬ 
garded with impunity; for it is idle to say that these requirements 
of the Constitution must be observed, if the departments charged 
with their observance are the sole judges as to whether or not they 
have been complied with. This proposition was advanced for the 
first time upon the petition for rehearing, and, if correct, it is of 
course an end of the controversy. Upon this branch of the case 
counsel cite Luther v. Borden, 7 How. 1, 12 L. Ed. 581. As this 
case has principally been relied upon by the advocates of the theory 
now under consideration, and has been given great prominence in 
the discussions which have taken place, we desire to present its facts 
with a degree of fullness which, under ordinary circumstances, 
would perhaps be considered unnecessary, to the end that the de¬ 
gree of its applicability to the present case may be fully understood. 

In 1841, the state of Rhode Island was acting under the form of 
government established by the charter of Charles II in 1663. In 
this form of government no mode of proceeding was pointed out by 
which amendments could be made. It authorized the legislature 
to prescribe the qualification of voters, and in the exercise of this 
power the right of suffrage was confined to freeholders. In 1841, 
meetings were held and associations were formed by those who 
were in favor of a more extended right of suffrage, which finally 
resulted in the election of a convention to form a new Constitution,, 
to be submitted to the people for their adoption or rejection. The 
persons chosen came together and framed a Constitution by which 
the right of suffrage was extended to every male citizen of twenty- 
one years of age who had resided in the state for one year. Upon 
a return of the votes, the convention declared that the Constitution 
was adopted and ratified by a majority of the people of the state, 
and was the paramount law and Constitution of Rhode Island. The 
charter government did not admit the validity of the proceedings 
nor acquiesce in them. On the contrary, in January, 1842, when 
this new Constitution was communicated to the governor and by 
him laid before the legislature, it passed resolutions declaring all 
acts done for the purpose of imposing that Constitution upon the 
state, to be an assumption of the powers of government, in viola¬ 
tion of the rights of the existing government and of the people at 
large, and that it would maintain its authority and defend the legal 
and constitutional rights of the people. Thomas W. Dorr, who had 
been elected governor under the new Constitution, prepared to as¬ 
sert the authority of that government by force, and many citizens. 


AMENDMENT OF STATE CONSTITUTIONS 3 

assembled in arms to support him. The charter government there¬ 
upon passed an act declaring the state under martial law, and at the 
same time proceeded to call out the militia to repel the threatened 
attack, and to subdue those who were engaged in it. The plain¬ 
tiff, Luther, was engaged in supporting the new government, and, 
in order to arrest him, his house was broken and entered by the 
defendants, who were enrolled in the military force of the old gov¬ 
ernment, and in arms to support its authority. The government 
under the new Constitution had but a short and ignoble existence. 
In May, 1842, Dorr made an unsuccessful attempt, at the head 
of a military force, to get possession of the state arsenal at Provi¬ 
dence, which was repulsed. In June following, an assemblage of 
some hundreds of armed men, under his command at Chepatchet, 
dispersed, upon the approach of the troops of the old government, 
and no further effort was made to establish the new government. 
In January, 1842, the charter government took measures to call a 
convention to revise the existing form of government, and a new 
Constitution was formed, which was ratified by the people, and 
went into operation in May, 1843, at which time the old govern¬ 
ment formally surrendered all its powers. Under this government 
Dorr was tried for treason, and in June, 1844, was sentenced to im¬ 
prisonment for life. In October, 1842, Luther brought an action 
in the Circuit Court of the United States, against Borden and 
others, to recover damages for the breaking and entering of his 
house in June, 1842. The defendants justified, alleging that there 
was an insurrection to overthrow the government, that martial law 
was declared, that plaintiff was aiding and abetting the insurrec¬ 
tion, that defendants were enrolled in the militia force of the state 
and were ordered to arrest the plaintiff. The plaintiff relied upon 
the fact that the Dorr government, to which he adhered, was the 
legal government of the state, and, as the new Constitution had 
never been recognized by any department of the old government, 
he offered to prove at the trial, by the production of the original 
ballots, and the original registers of the persons voting, and by the 
testimony of the persons voting, and by the Constitution itself, and 
by the census of the United States for the year 1840, that the Dorr 
Constitution was ratified by a large majority of the male people of 
the state, of the age of twenty-one and upwards, and also by a 
majority of those who were entitled to vote for general officers 
under the then existing laws of the state. The Circuit Court re¬ 
jected the evidence, and instructed the jury that the charter gov¬ 
ernment, and laws under which the defendants acted, were, at the 
time the trespass was alleged to have been committed, in full force 
and effect, and constituted a justification of the acts of the defend¬ 
ants. The correctness* of this ruling involved the only question, 
which was taken to the Supreme Court of the United States for 


4 


AMENDMENT OF STATE CONSTITUTIONS 


review. The Supreme Court held that the evidence was properly 
rejected. Of the correctness of that decision no one can entertain 
the shadow of a doubt. But the differences between that case and 
this are so many and so evident as to deprive it of all force as an 
authority in the present controversy. In that case an entire change 
in the form of government was undertaken; in this, simply an 
amendment, in no manner affecting the judicial authority of those 
acting under the existing government, is sought to be incorporated 
into the existing Constitution. In that case the charter provided 
no means for its amendment; in this, the mode of an amendment 
is specifically provided. In that case the authority of the court 
was invoked for the admission of oral evidence to overthrow the 
existing government and establish a new one in its place; in this, 
that authority is invoked simply to preserve the existing Constitu¬ 
tion intact. 

It is evident, from an examination of the entire case of Luther v. 
Borden, that the question which the court was considering per¬ 
tained to the power of the federal courts to determine between rival 
constitutions in the states. The power is not denied to the state 
courts, unless one of the constitutions involved in the controversy 
be the one under which the court is organized. This is fully ap¬ 
parent from the whole opinion. * * * 

The language of the court which, it is claimed, asserts the doc¬ 
trine that the question of a change of Constitutions is a political 
one, with which courts have nothing to do, was clearly employed 
with reference to the peculiar facts of the case. This is apparent 
from the following language of the opinion, which is found upon 
pages 39, 40: “Indeed, we do not see how the question could be 
tried and judicially decided in the state court. Judicial power pre¬ 
supposes an established government, capable of enacting laws and 
enforcing their execution, and of appointing judges to expound and 
administer them. The acceptance of the judicial office is a recog¬ 
nition of the authority of the government from which it is derived, 
and if the authority of that government is annulled and over¬ 
thrown, the power of its courts and other officers is annulled with 
it, and if a state court should enter upon the inquiry proposed in 
this case, and should come to the conclusion that the government 
under which it acted had been put aside and displaced by an op¬ 
posing government, it would cease to be a court, and be incapable 
of pronouncing a judicial decision upon the question it undertook 
to try. If it decides at all as a court, it necessarily affirms the ex¬ 
istence and the authority of the government under which it is ex¬ 
ercising judicial power.^^ That this reasoning is eminently sound 
no one can doubt. A court which, under the circumstances named, 
should enter upon an inquiry as to the existence of the Constitution 
under which it was acting, would be like a man trying to prove his 


AMENDMENT OF STATE CONSTITUTIONS 


5 


personal existence, and would be obliged to assume the very point 
in dispute, before taking the first step in the argument. It is ap¬ 
parent that the reasoning employed in that case can have no ap¬ 
plication whatever to an amendment to a constitution, which does 
not affect the form of government, or the judicial powers of ex¬ 
isting courts. The case of Luther v. Borden gives no countenance 
whatever to the doctrine that the sovereignty of the people extends 
rightfully to the overturning of Constitutions and the adoption of 
new ones, without regard to the forms of existing provisions. It 
is true that right, under our form of government, exists, but it is 
a revolutionary and not a constitutional right. When that right is 
invoked, a question arises which is above the Constitution, and 
above the courts, and which contending factions can alone deter¬ 
mine by appeal to the dernier resort. In such a case as that, might 
makes right. That there are questions of such a character as to 
admit of no adjustment but through an appeal to arms, we freely 
admit. This arises out of the imperfections of human government. 
A government which could provide for the peaceful adjustment of 
all questions would be more than human. But surely no sagacious 
statesman or wise jurist will seek, by a narrow construction of ju¬ 
dicial power, to extend the questions which are beyond the domain 
of the courts, and capable of solution only by an appeal to arms. 
Happily for the permanency and security of our institutions, the 
present case, as we believe, involves no such question. 

It has been said that changes in the Constitution may be intro¬ 
duced in disregard of its provisions; that, if the majority of the 
people desire a change, the majority must be respected, no matter 
how the change may be effected, and that the change, if revolution, 
is peaceful revolution. But the revolution is peaceful only upon 
the assumption that the party opposed surrenders its opposition 
and voluntarily acquiesces. If it objects to the change, then a 
question arises which can be determined only in one of two meth¬ 
ods, by the arbitrament of the courts, or by the arbitrament of the 
sword. * * * 

Counsel have drawn an appalling picture of the wreck in which 
our political institutions would be involved, if the courts should 
conclude to decide that the Constitution of 1857, under which they 
are organized, had not been properly adopted. The courts of this 
state possess no such power, and they could not assume such a 
jurisdiction. The reason why a court could not enter upon the de¬ 
termination as to the validity of a Constitution under which it is 
itself organized, is forcibly set forth in the case of Luther v. Bor¬ 
den, supra, upon which appellant relies. The distinction between 
such a case and one involving merely an amendment, not in any 
manner pertaining to the judicial authority, must at once be ap- 


C AMENDMENT OF STATE CONSTITUTIONS 

parent to the legal mind. The authorities recognize the distinction. 
We are at a loss to know why appellant’s counsel ignore and dis¬ 
regard it. 

Appellant’s counsel cite and rely upon section 2, article 1, of the 
Constitution of the state. This section is a portion of the Bill of 
Rights, and is as follows: ‘‘All political power is inherent in the 
people. Government is instituted for the protection, security, and 
benefit of the people, and they have the right, at all times, to alter 
or reform the same, whenever the public good may require.” Ab¬ 
stractly considered, there can be no doubt of the correctness of the 
propositions embraced in this section. These principles are older 
than Constitutions, and older than governments. The people did 
not derive the rights referred to from the Constitution, and, in their 
nature, they are such that the people cannot surrender them. The 
people would have retained them if they had not been specifically 
recognized in the Constitution. But let us consider how these 
rights are to be exercised in an organized government. The people 
of this state have adopted a Constitution which specifically desig¬ 
nates the modes for its own amendment. But this section declares 
the people have the right at all times to alter or reform the govern¬ 
ment, whenever the public good may require it. If the people unan- 
irnously agree respecting an alteration in the government, there 
could be no trouble, for there would be no one to object. Suppose, 
however, a part of the people conclude that the public good requires 
an alteration or reformation in the government, and they set about 
the adoption of a new Constitution, in a manner not authorized in 
the old one. Suppose, also, as would most likely prove to be the 
case, that a part of the people are content with the existing govern¬ 
ment, and will not consent to the change, and that the governor, 
who, under the Constitution, is the “commander-in-chief of the 
militia, the army and navy of the state,” determines to maintain the 
existing government by force. It is evident that the people who 
think the public good requires a change, can establish these changes 
only by superior force. If they are powerful enough to succeed, 
well. They will have altered or reformed the government. But if 
they are not powerful enough to succeed, their attempt to over¬ 
throw the government is treason, and they are liable to punishment 
as traitors. They have the right to alter their government, in a 
manner not recognized in the Constitution, only when they can 
maintain that right by superior force. It follows, then, after all, 
that the much boasted right claimed under this action, is simply the 
right to alter the government in the manner prescribed in the exist¬ 
ing Constitution, or the right of revolution, which is a right to be 
exercised, not under the Constitution, but in disregard and inde¬ 
pendently of it. * * 


AMENDMENT OF STATE CONSTITUTIONS 


7 


[Quoting from Cooley, Constitutional Limitations, p. 30;]. “In 
the original states, and all others subsequently admitted to the 
Union, the power to amend or revise their Constitutions resides in 
the great body of the people as an organized body politic, who, be¬ 
ing vested with ultimate sovereignty, and the source of all state 
authority, have power to control and alter the law which they have 
made at their will. But the people in the legal sense must be un¬ 
derstood to be those who, by the existing Constitution, are clothed 
with political rights, and who, while that instrument remains, will 
be the sole organs through which the will of the body politic can 
be expressed. But the will of the people to this end can only be 
expressed in the legitimate modes by which such a body politic 
can act, and which must either be prescribed by the Constitution 
whose revision or amendment is sought, or by an act of the legisla¬ 
tive department of the state, which alone would be authorized to 
speak for the people upon this subject, and to point out a mode 
for the expression of their will, in the absence of any provision 
for amendment or revision contained in the Constitution it- 
self.” 2 * 

{The court here discusses Collier v. Frierson, 24 Ala. 108; State 
V. McBride, 4 Mo. 303, 29 Am. Dec. 636; State v. Swift, 69 Ind. 
505; Westinghausen v. People, 44 Mich. 265, 6 N. W. 641; Pro¬ 
hibitory Amendment Cases, 24 Kan. 700; State ex rel. Hudd v. 
Timme, 54 Wis. 318, 11 N. W. 785; and Trustees v. Mclver, 72 N. 
C. 76.] 

It is true that in the last five cases the question of jurisdiction was 
not raised by counsel. But the courts could not have entered upon 
an examination of the cases without first determining in favor of 
their jurisdiction. If they entertained doubts respecting their juris¬ 
diction, it was the duty of the courts to raise the question them¬ 
selves. We have then seven states, Alabama, Missouri, Kansas, 
Michigan, North Carolina, Wisconsin, and Indiana, in which the 
jurisdiction of the courts over the adoption of an amendment to a 
Constitution has been recognized and asserted. In no decision, ei¬ 
ther state or federal, has this jurisdiction been denied. We may 
securely rest our jurisdiction upon the authority of these cases. 
* * * Petition overruled. 

[Beck, J., gave a dissenting opinion.] 

2 “There is underlying our whole system of American government a prin¬ 
ciple of acknowledged right in the people to change their Constitutions, ex¬ 
cept where especially prohibited in a Constitution itself, in all cases and at 
all times, whether there is a way provided in their Constitution or not, by 
the interposition of the legislature, and the calling of a convention, as was 
done in the case in hand. The offspring of revolution originally, but re¬ 
strained and modified by the necessity arising out of the new principle es¬ 
tablished in this country, by the accomplishment of our national independ¬ 
ence, that the people are the government, and not the king, and the source of 


8 


CONSTEUCTION AND INTERPRETATION OF CONSTITUTIONS 


CONSTRUCTION AND INTERPRETATION OF CONSTI- 

TUTIONS ^ 


MARBURY V. MADISON. 

(Supreme Court of United States, 1803. 1 Crunch, 137, 2 L. Ed. 60.) 

[Original mandamus proceeding. William Marbury and others 
moved for a rule to James Madison, Secretary of State, to show 
cause why a mandamus should not issue commanding the deliv¬ 
ery to applicants of their commissions as justices of the peace of 
the District of Columbia, which had been previously signed by 
President Adams just before the expiration of his term of office. 
The Judiciary Act of 1789 authorized the Supreme Court ‘‘to issue 
writs of mandamus * * * to any courts appointed or persons 

holding office under the authority of the United States.” After de¬ 
ciding that the applicants had a legal right to the commissions, that 
mandamus was a proper remedy, but that the power to issue it 
was not within the original jurisdiction of the Supreme Court, un¬ 
der article III, § 2, par. 2, of the Constitution, the court proceeded 
as follows:] 

Mr. Chief Justice Marshauu. ^ ^ ^ 'pPe authority, therefore, 

given to the Supreme Court, by the act establishing the judicial 
courts of the United States, to issue writs of mandamus to public 
officers, appears not to be warranted by the Constitution; and it 
becomes necessary to inquire whether a jurisdiction so conferred 
can be exercised. 

The question whether an act repugnant to the Constitution can 
become the law of the land, is a question deeply interesting to the 
United States; but, happily, not of an intricacy proportioned to its 
interest. It seems only necessary to recognize certain principles, 
supposed to have been long and well established, to decide it. 

That the people have an original right to establish, for their fu¬ 
ture government, such principles as, in their opinion, shall most 
conduce to their own happiness, is the basis on which the whole 
American fabric has been erected. The exercise of this original 
right is a very great exertion; nor can it nor ought it to be fre- 

all political power,—it has become legitimated, and without mention in our 
Constitutions, is as much the law of the land as if specifically set out in them; 
and that as a solemn recognition of this, and not as a revolutionary right, 
the section of the Declaration of Rights in our own, and similar clauses in 
other state Constitutions, were inserted.” Wood’s Appeal, 75 Pa. 59, 65, 66 
(1874), by Stowe, J. ’ 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 30-32, 39, 



CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 


quently repeated. The principles, therefore, so established, are 
deemed fundamental. And as the authority from which they pro¬ 
ceed is supreme, and can seldom act, they are designed to be per¬ 
manent. This original and supreme will organizes the government, 
and assigns to different departments their respective powers. It 
may either stop here, or establish certain limits not to be tran¬ 
scended by those departments. 

The government of the United States is of the latter description. 
The powers of the legislature are defined and limited; and that 
those limits may not be mistaken, or forgotten, the Constitution is 
written. To what purpose are powers limited, and to what pur¬ 
pose is that limitation committed to writing, if these limits may, 
at any time, be passed by those intended to be restrained? The 
distinction between a government with limited and unlimited pow¬ 
ers is abolished, if those limits do not confine the persons on whom 
they are imposed, and if acts prohibited and acts allowed are of 
equal obligation. It is a proposition too plain to be contested, that 
the Constitution controls any legislative act repugnant to it; or, 
that the legislature may alter the Constitution by an ordinary act. 
Between these alternatives there is no middle ground. The Con¬ 
stitution is either a superior paramount law, unchangeable by ordi¬ 
nary means, or it is on a level with ordinary legislative acts, and, 
like other acts, is alterable when the legislature shall please to 
alter it. If the former part of the alternative be true, then a legisla¬ 
tive act contrary to the Constitution is not law; if the latter part 
be true, then written constitutions are absurd attempts, on the part 
of the people, to limit a power in its own nature illimitable. 

Certainly all those who have framed written constitutions con¬ 
template them as forming the fundamental and paramount law 
of the nation, and, consequently, the theory of every such govern¬ 
ment must be, that an act of the legislature, repugnant to the Con¬ 
stitution, is void. This theory is essentially attached to a written 
constitution, and is consequently to be considered, by this court, as 
one of the fundamental principles of our society. It is not, there¬ 
fore, to be lost sight of in the further consideration of this subject. 
If an act of the legislature repugnant to the Constitution, is void, 
does it, notwithstanding its invalidity, bind the courts, and oblige 
them to give it effect? Or, in other words, though it be not law, 
does it constitute a rule as operative as if it was a law? This 
would be to overthrow in fact what was established in theory; and 
would seem, at first view, an absurdity too gross to be insisted on. 
It shall, however, receive a more attentive consideration. 

It is emphatically the province and duty of the judicial depart¬ 
ment to say what the law is. Those who apply the rule to particu¬ 
lar cases, must of necessity expound and interpret that rule. If 


10 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 

two laws conflict with each other, the courts must decide on the 
operation of each. So if a law be in opposition to the Constitu¬ 
tion; if both the law and the Constitution apply to a particular 
case, so that the court must either decide that case conformably to 
the law, disregarding the Constitution, or conformably to the Con¬ 
stitution, disregarding the law, the court must determine which of 
these conflicting rules governs the case. This is of the very essence 
of judicial duty. If, then, the courts are to regard the Constitution, 
and the Constitution is superior to any ordinary act of the legis¬ 
lature, the Constitution, and not such ordinary act, must govern 
the case to which they both apply. 

Those, then, who controvert the principle that the Constitution 
is to be considered, in court, as a paramount law, are reduced to 
the necessity of maintaining that courts must close their eyes on 
the Constitution, and see only the law. This doctrine would sub¬ 
vert the very foundation of all written constitutions. It would de¬ 
clare that an act which, according to the principles and theory of 
our government, is entirely void, is yet, in practice, completely 
obligatory. It would declare that if the legislature shall do what 
is expressly forbidden, such act, notwithstanding the express pro¬ 
hibition, is in reality effectual. It would be giving to the legisla¬ 
ture a practical and real omnipotence, with the same breath which 
professes to restrict their powers within narrow limits. It is pre¬ 
scribing limits, and declaring that those limits may be passed at 
pleasure. That it thus reduces to nothing what we have deemed 
the greatest improvement on political institutions, a written Con¬ 
stitution, would of itself be sufficient, in America, where written 
Constitutions have been viewed with so much reverence, for re¬ 
jecting the construction. But the peculiar expressions of the Con¬ 
stitution of the United States furnish additional arguments in favor 
of its rejection. 

The judicial power of the United States is extended to all cases 
arising under the Constitution. Could it be the intention of those 
who gave this power, to say that in using it the Constitution should 
not be looked into? That a case arising under the Constitution 
should be decided without examining the instrument under which 
it arises? This is too extravagant to be maintained. In some cases, 
then, the Constitution must be looked into by the judges. And 
if they can open it at all, what part of it are they forbidden to read 
or to obey? 

There are many other parts of the Constitution which serve 
to illustrate this subject. It is declared that “no tax or duty shall 
be laid on articles exported from any state."’ Suppose a duty on 
the export of cotton, of tobacco, or of flour; and a suit instituted 
to recover it. Ought judgment to be rendered in such a case? 
Ought the judges to close their eyes on the Constitution, and only 


CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS H 

see the law? The Constitution declares “that no bill of attainder 
or ex post facto law shall be passed.” If, however, such a bill 
should be passed, and a person should be prosecuted under it, must 
the court condemn to death those victims whom the Constitution 
endeavors to preserve? “No person,” says the Constitution, “shall 
be convicted of treason unless on the testimony of two witnesses 
to the same overt act, or on confession in open court.” Here the 
language of the Constitution is addressed especially to the courts. 
It prescribes, directly for them, a rule of evidence not to be de¬ 
parted from. If the legislature should change that rule, and de¬ 
clare one witness, or a confession out of court, sufficient for convic¬ 
tion, must the constitutional principle yield to the legislative act? 

From these, and many other selections which might be made, it 
is apparent that the framers of the Constitution contemplated that 
instrument as a rule for the government of courts, as well as of 
the legislature. Why otherwise does it direct the judges to take 
an oath to support it? This oath certainly applies in an especial 
manner to their conduct in their official character. How immoral 
to impose it on them, if they were to be used as the instruments, 
and the knowing instruments, for violating what they swear to 
support! The oath of office, too, imposed by the legislature, is 
completely demonstrative of the legislative opinion on this sub¬ 
ject. It is in these words: “I do solemnly swear that I will ad¬ 
minister justice without respect to persons, and do equal right to 
the poor and to the rich; and that I will faithfully and impartially 

discharge all the duties incumbent on me as -, according to 

the best of iny abilities and understanding, agreeably to the Consti¬ 
tution and laws of the United States.” Why does a judge swear 
to discharge his duties agreeably to the Constitution of the United 
States, if that Constitution forms no rule for his government— 
if it is closed upon him, and cannot be inspected by him? If such 
be the real state of things, this is worse than solemn mockery. To 
prescribe, or to take this oath, becomes equally a crime. 

It is also not entirely unworthy of observation, that in declaring 
what shall be the supreme law of the land, the Constitution itself 
is first mentioned; and not the laws of the United States generally, 
but those only which shall be made in pursuance of the Constitu¬ 
tion, have that rank. Thus, the particular phraseology of the Con¬ 
stitution of the United States confirms and strengthens the prin¬ 
ciple, supposed to be essential to all written constitutions, that a 
law repugnant to the Constitution is void; and that courts, as 
well as other departments, are bound by that instrument. 

Rule discharged. 



12 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 


sharpless V. MAYOR OF PHILADELPHIA. 

(Supreme Court of Pennsylvania, 1853. 21 Pa. 147, 59 Am. Dec. 759.) 

[Original bill in equity. Acting under authority of a Pennsyl¬ 
vania statute, defendants, officials of the city of Philadelphia, were 
about to subscribe for $1,000,000 of the stock of two railway com¬ 
panies, paying therefor in city bonds, in order to secure the con¬ 
struction of certain lines of railroad that would connect Philadel¬ 
phia with other parts of the state. Plaintiffs, residents and owners 
of real and personal property in the city that would be subject to 
taxation for the payment of said bonds, sought to enjoin said pro¬ 
posed subscription as one not validly authorized under the state 
Constitution.] 

BIvACk, C. J. * * * It is important, first of all, to settle the 

rule of interpretation. This can be best done by a slight reference 
to the origin of our political system. In the beginning the people 
held in their own hands all the power of an absolute government. 
The transcendant powers of Parliament devolved on them by the 
Revolution. Bonaparte v. Camden & A. R. Co., 1 Bald. 220, Fed. 
Cas. No. 1,617; Johnson v. McIntosh, 8 Wheat. 584, 5 L. Ed. 681; 
Wilkinson v. Leland, 2 Pet. 656, 7 L. Ed, 542. Antecedent to the 
adoption of the federal Constitution, the power of the states was 
supreme and unlimited. Farmers’ & Mechanics’ Bank v. Smith, 3 
Serg. & R. 68. If the people of Pennsylvania had given all the 
authority which they themselves possessed to a single person, they 
would have created a despotism as absolute in its control ovet life, 
liberty, and property as that of the Russian autocrat. But they 
delegated a portion of it to the United States, specifying what they 
gave, and withholding the rest. The powers not given to the gov¬ 
ernment of the Union were bestowed on the government of the 
state, with certain limitations and exceptions, expressly set down 
in the state Constitution. The federal Constitution confers powers 
particularly enumerated; that of the state contains a general grant 
of all powers not excepted. The construction of the former instru¬ 
ment is strict against those who claim under it; the interpretation 
of the latter is strict against those who stand upon the exceptions, 
and liberal in favor of the government itself. The federal govern¬ 
ment can do nothing but what is authorized expressly or by clear 
implication; the state may do whatever is not prohibited. 

The powers bestowed on the state government were distributed 
by the Constitution to the three great departments: the legislative, 
the executive, and the judicial. The power to make laws was 
granted in section 1 of article 1, by the following words: *‘The legis¬ 
lative power of this commonwealth shall be vested in a General As¬ 
sembly, which shall consist of a Senate and House of Representa- 


CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 13 

lives.” It is plain that the force of these general words, if there had 
been nothing elsewhere to qualify them, would have given to the 
Assembly an unlimited power to make all such laws as they might 
think proper. They would have had the whole omnipotence of the 
British Parliament. But the absolute power of the people them¬ 
selves had been previously limited by the federal Constitution, and 
they could not bestow on the legislature authority which had al¬ 
ready been given to Congress. The judicial and executive powers 
were also lodged elsewhere, and the legislative department was 
forbidden to trench upon the others by an implication as clear as 
words could make it. The jurisdiction of the Assembly was still 
further confined by that part of the Constitution called the “Decla¬ 
ration of Rights,” which, in twenty-five sections, carefully enumer¬ 
ates the reserved rights of the people, and closes by declaring that 
“everything in this article is excepted out of the general powers 
of the government, and shall remain for ever inviolate.” The Gen¬ 
eral Assembly cannot, therefore, pass any law to conflict with the 
rightful authority of Congress, nor perform a judicial or executive 
function, nor violate the popular privileges reserved by the Decla¬ 
ration of Rights, nor change the organic structure of the govern¬ 
ment, nor exercise any other power prohibited in the Constitution. 
If it does any of these things, the judiciary claims, and in clear 
cases has always exercised, the right to declare such acts void. 

But beyond this there lies a vast field of power, granted to the 
legislature by the general words of the Constitution, and not re¬ 
served, prohibited, or given away to others. Of this field the Gen¬ 
eral Assembly is entitled to the full and uncontrolled possession. 
Their use of it can be limited only by their own discretion. The 
reservation of some powers does not imply a restriction on the 
exercises of others which are not reserved. On the contrary, it is 
a universal rule of construction, founded in the clearest reason, 
that general words in any instrument or statute are strengthened 
by exceptions, and weakened by enumeration. To me, it is as plain 
that the General Assembly may exercise all powers which are prop¬ 
erly legislative, and which are not taken away by our own, or by 
the federal Constitution, as it is that the people have all the rights 
which are expressly reserved. 

We are urged, however, to go further than this, and to hold that 
a law, though not prohibited, is void if it violates the spirit of our 
institutions, or impairs any of those rights which it is the object 
of a free government to protect, and to declare it unconstitutional 
if it be wrong and unjust. But we cannot do this. It would be 
assuming a right to change the Constitution, to supply what we 
might conceive to be its defects, to fill up every casus omissus, and 
to interpolate into it whatever in our opinion ought to have been 
put there by its framers. The Constitution has given us a list of 
the things which the legislature may not do. If we extend that list, 


14 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 

we alter the instrument, we become ourselves the aggressors, and 
violate both the letter and spirit of the organic law as grossly as 
the legislature possibly could. If we can add to the reserved rights 
of the people, we can take them away; if we can mend, we can 
mar; if we can remove the landmarks which we find established, 
we can obliterate them; if we can change the Constitution in any 
particular, there is nothing but our own will to prevent us from 
demolishing it entirely. 

The great powers given to the legislature are liable to be abused. 
But this is inseparable from the nature of human institutions. The 
wisdom of man has never conceived of a government with power 
sufficient to answer its legitimate ends, and at the same time in¬ 
capable of mischief. No political system can be made so perfect 
that its rulers will always hold it to the true course. In the very 
best a great deal must be trusted to the discretion of those who ad¬ 
minister it. In ours, the people have given larger powers to the 
legislature, and relied, for the faithful execution of them, on the 
wisdom and honesty of that department, and on the direct account¬ 
ability of the members of their constituents. There is no shadow of 
reason for supposing that the mere abuse of power was meant to 
be corrected by the judiciary. 

There is nothing more easy than to imagine a thousand tyran¬ 
nical things which the legislature may do, if its members forget 
all their duties; disregard utterly the obligations they owe to their 
constituents, and recklessly determine to trample upon right and 
justice. But to take away the power from the legislature because 
they may abuse it, and give to the judges the right of controlling 
it, would not be advancing a single step, since the judges can be 
imagined to be as corrupt and as wicked as legislators. ^ ^ ^ 

What is worse still, the judges are almost entirely irresponsible, 
and heretofore they have been altogether so, while the members 
of the legislature, who would do the imaginary things referred to, 
“would be scourged into retirement by their indignant masters.” 

I am thoroughly convinced that the words of the Constitution 
furnish the only test to determine the validity of a statute, and that 
all arguments, based on general principles outside of the Consti¬ 
tution, must be addressed to the people, and not to us. * * 

[After referring to various dicta to the contrary:] On the other 
side, the weight of authority is overwhelming. I am not aware 
that any state court has ever yet held a law to be invalid, except 
where it was clearly forbidden. Certainly, no case of a different 
character has been cited at the bar. In the many cases which af¬ 
firm the validity of state laws, this principle is uniformly recognized, 
either tacitly or expressly. The Supreme Court of the United 
States has adhered to it on every occasion when it has been ques¬ 
tioned there. In Satterlee v. Matthewson (2 Pet. 380, 7 L. Ed. 
458), an act of the Pennsylvania legislature was censured as un- 


CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 15 

wise and unjust; but, because it came within no express prohibition 
of the Constitution, it was held to be binding on the parties inter¬ 
ested ; and in Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162, it was de¬ 
clared that, while the legislature was within the Constitution, even 
corruption did not make its acts void. In Calder v. Bull, 3 Dali. 
386, 1 L. Ed. 648, Mr. Justice Iredell said: “If a state legislature 
shall pass a law, within the general scope of their constitutional 
powers, the court cannot pronounce it to be void, merely because 
it is, in their judgment, contrary to the principles of natural jus¬ 
tice. The ideas of natural justice are regulated by no fixed stand¬ 
ard, the ablest and the purest men have differed upon the subject; 
and all the court, in such an event, could say, would be that the 
legislature (possessed of an equal right of opinion) had passed an 
act, which, in the opinion of the judges, was contrary to abstract 
principles of right.” * * 

Judge Baldwin in Bennett v. Boggs, 1 Bald. 74, Fed. Cas. No. 
1,319, [said] : “* * * cannot declare a legislative act'void 

because it conflicts with our opinion of policy, expediency, or jus¬ 
tice.” * He * 

There is another rule which must govern us in cases like this; 
namely, that we can declare an Act of Assembly void, only when 
it violates the Constitution clearly, palpably, plainly; and in such 
manner as to leave no doubt or hesitation on our minds. This 
principle is asserted by judges of every grade, both in the federal 
and in the state courts; and by some of them it is expressed with 
much solemnity of language. Fletcher v. Peck, 6 Cranch, 87, 3 
L. Ed. 162; Cooper v. Telfair, 4 Dali. 14, 1 L. Ed. 721; Moore v. 
Houston, 3 Serg. & R. 178; Eakin v. Raub, 12 Serg. & R. 339; 
Com. ex rel. O’Hara v. Smith, 4 Bin. 123. A citation of all the au¬ 
thorities which establish it would .include nearly every case in 
which a question of constitutional law has arisen. I believe it has 
the singular advantage of not being opposed even by a dictum. 

We are to inquire then, whether there is anything in the Consti¬ 
tution which expressly or by clear implication forbids the legisla¬ 
ture to authorize subscriptions by a city to the capital stock of a 
company incorporated for the purpose of making a railroad. * * * 

[Here follows a discussion upholding taxation to pay such sub¬ 
scriptions as being in fact for a public purpose and not within any 
specific prohibition of the state Constitution. Cases to this effect 
from other states are cited.] These cases are entitled to our high¬ 
est respect. In most of them, and especially the later ones, the 
subject is very ably discussed, and they are a manifest triumph of 
reason and law over a strong conviction in the minds of the judges 
that the system they sustain was impolitic, dangerous, and im¬ 
moral. He * * 

Injunction refused. 

[Woodward and Knox, JJ., gave concurring opinions.] 


16 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 


BORGNIS V. FALK CO. (1911) 147 Wis. 327, 348-350, 133 N. 
W. 209, 215, 216, Winslow, C. J. (upholding a Wisconsin work^ 
men’s compensation act upon an “elective” insurance plan) : 

“In approaching the consideration of the present law, we must 
bear in mind the well-established principle that it must be sustained, 
unless it be clear beyond reasonable question that it violates some 
constitutional limitation or prohibition. That governments founded 
on written Constitutions which are made difficult of amendment 
or change lose much in flexibility and adaptablity to changed con¬ 
ditions there can be no doubt. Indeed that may be said to be one 
purpose of the written Constitution. Doubtless they gain enough 
in stability and freedom from mere whimsical and sudden changes 
to more than make up for the loss in flexibility; but the loss still 
remains, whether for good or ill. A Constitution is a very human 
document, and must embody with greater or less fidelity the spirit 
of the time of its adoption. It will be framed to meet the problems 
and difficulties which face the men who make it, and it will gen¬ 
erally crystallize with more or less fidelity the political, social, and 
economic propositions which are considered irrefutable, if not actu¬ 
ally inspired, by the philosophers and legislators of the time; but 
the difficulty is that, while the Constitution is fixed or very hard 
to change, the conditions and problems surrounding the people, as 
well as their ideals, are constantly changing. The political or phil¬ 
osophical aphorism of one generation is doubted by the next, and 
entirely discarded by the third. The race moves forward con¬ 
stantly, and no Canute can stay its progress. 

“Constitutional commands and prohibitions, either distinctly laid 
down in express words or necessarily implied from general words, 
must be obeyed, and implicitly obeyed, so long as they remain un¬ 
amended or unrepealed. Any other course on the part of either 
legislator or judge constitutes violation of his oath of office; but 
when there is no such express command or prohibition, but only 
general language, or a general policy drawn from the four corners 
of the instrument, what shall be said about this? By what stand¬ 
ards is this general language or general policy to be interpreted 
and applied to present day people and conditions? When an eigh¬ 
teenth century Constitution forms the charter of liberty of a twen¬ 
tieth century government, must its general provisions be construed 
and interpreted by an eighteenth century mind in the light of 
eighteenth century conditions and ideals? Clearly not. This were 
to command the race to halt in its progress, to stretch the state 
upon a veritable bed of Procrustes. 

“Where there is no express command or prohibition, but only 
general language or policy to be considered, the conditions prevail¬ 
ing at the time of its adoption must have their due weight; but 
the changed social, economic, and governmental conditions and 


CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 17 

ideals of the time, as well as the problems which the changes have 
produced, must also logically enter into the consideration, and be¬ 
come influential factors in the settlement of problems of construc¬ 
tion and interpretation. These general propositions are here laid 
down, not because they are considered either new or in serious 
controversy, but because they are believed to be peculiarly appli¬ 
cable to a case like the present, where a law which is framed to 
meet new economic conditions and difficulties resulting therefrom 
is attacked principally because it is believed to offend against con¬ 
stitutional guaranties or prohibitions couched in general terms, or 
supposed general policies drawn from the whole body of the in¬ 
strument.” 

Hall Cases Const.L.—2 


18 


THE THREE DEPARTMENTS OF GOVERNMENT 


THE THREE DEPARTMENTS OF GOVERNMENT * 


MERRILL V. SHERBURNE. 

(Superior Court of New Hampshire, 1818. 1 N. H. 199, 8 Am. Dec. 52.) 

[Appeal from the probate court of Rockingham county, New 
Hampshire. This court allowed the probate of an instrument as the 
will of Nathaniel Ward, in which all his property was devised to 
Merrill. Sherburne, one of Ward’s heirs, appealed from this deci¬ 
sion to the Superior Court, where this decree was reversed, and, 
after refusing a motion for a new trial, the court rendered final 
judgment for Sherburne. The legislature, on Merrill’s petition, 
passed an act granting to him a new trial in the Superior Court. 
Sherburne moved to quash the proceedings thus begun by Merrill, 
as based on an unconstitutional exercise of judicial power by the 
legislature.] 

Woodbury, J. * * * 1. No particular definition of judicial 

powers is given in the Constitution; and considering the general 
nature of the instrument, none was to be expected. Critical state¬ 
ments of the meanings, in which all important words were em¬ 
ployed, would have swollen into volumes; and when those words 
possessed a customary signification, a definition of them would 
have been useless. But “powers judicial,” “judiciary powers,” and 
“judicatories” are all phrases used in the Constitution; and though 
not particularly defined, are still so used to designate with clear¬ 
ness, that department of government, which it was intended should 
interpret and administer the laws. On general principles there¬ 
fore, those inquiries, deliberations, orders and decrees, which are 
peculiar to such a department, must in their nature be judicial acts. 
Nor can they be both judicial and legislative; because a marked 
difference exists between the employments of judicial and legisla¬ 
tive tribunals. The former decide upon the legality of claims and 
conduct; the latter make rules, upon which, in connection with the 
Constitution, those decisions should be founded. It is the province 
of judges to determine what is the law upon existing cases. 6 
Bac. Stat. 11; Ogden v. Blackledge, 2 Cranch, 272, 2 L. Ed. 276; 
Dash V. Van Kleeck, 7 Johns. (N. Y.) 498, 5 Am. Dec. 291. In 
fine, the law is applied by the one, and made by the other.^ To 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 50-56. 

For additional cases under this topic, see cases under The Federal Execu¬ 
tive, post, pp. 35-42. 

2 “What constitutes the distinction between a legislative and judicial act? 
The former establishes a rule regulating and governing in matters or trans¬ 
actions occurring after its passage. The other determines rights or obliga^ 



THE THREE DEPARTMENTS OF GOVERNMENT 


19 


do the first, therefore, to compare the claims of parties with the 
laws of the land before established, is in its nature a judicial act. 
But to do the last, to pass new rules for the regulation of new 
controversies, is in its nature a legislative act; and if these rules 
interfere with the past, or the present, and do not look wholly to 
the future, they violate the definition of a law, “as a rule of civil 
conduct’’ (1 Bl. Com. 44), because no rule of conduct can with 
consistency operate upon what occurred before the rule itself was 
promulgated. ^ ^ 

The grant of a new trial belongs to the courts of law from im¬ 
memorial usage. The power to grant a new trial is incidental to 
their other powers. It is a judgment in relation to a private con¬ 
troversy; affects what has already happened; and results from a 
comparison of evidence and claims with the existing laws. It will 
not be denied, that the consideration and decision, by the Superior 
Court, of the motion for this same new trial was an exercise of ju¬ 
dicial power. If so a consideration and decision upon the same sub¬ 
ject by the legislature must be an exercise of power of the same de¬ 
scription; for what is in its nature judicial to-day, must be judicial 
to-morrow and forever. The circumstance, also, that the legislature 
themselves did not proceed to make a final judgment on the merits 
of the controversy between these parties cannot alter the character 
of the act granting a new trial. To award such a trial was one ju¬ 
dicial act, and because they did not proceed to perform another, by 
holding that trial before themselves, the first act did not become 
any more or less a judicial one. We apprehend, therefore, that 
the character of the act under consideration must be deemed judi¬ 
cial. This position will probably be less doubted, than the position 
that our Constitution has not confided to the legislature the power 
to pass such an act. But that power, if confided, must be exercised 
by the legislature as a branch of the judiciary, or under some spe¬ 
cial provision, or as a mere legislative body. 

2. Our next inquiry, then, is, whether they, as a branch of the 
judiciary, are enabled to exercise it. * * At the formation of 

our present Constitution, whatever might have been the prior con¬ 
nection between the legislative and judicial departments, a great 
solicitude existed to keep them, thence forward, on the subject of 

tions of any kind, whether in regard of persons or property, concerning mat¬ 
ters or transactions which already exist and have transpired ere the judicial 
power is invoked to pass on them.” Thornton, J., in Smith v. Strother, 68 
Cal. 194, 196, 197, 8 Pac. 852, 853, 854 (1885). 

“The distinction between a judicial and a legislative act is well defined. 
The one determines what the law is, and what the rights of parties are, with 
reference to transactions already had; the other provides what the law shall 
be in future cases arising under it. Wherever an act undertakes to deter¬ 
mine a question of right or obligation, or of property, as the foundation on 
which it proceeds, such act is, to that extent, a judicial one, and not the 
proper exercise of legislative functions.” Field, J. (in dissenting opinion), in 
Sinking Fund Cases, 99 U. S. 727, 761, 25 L. Ed. 504 (1879). 


20 


THE THREE DEPARTMENTS OP GOVERNMENT 


private controversies, perfectly separate and independent. 1 Bl. C. 
Apx. A : Letter of Judges Sup. Court of United States, April, 1782. 

It was well known and considered, that “in the distinct and sep¬ 
arate existence of the judicial power consists one main preservative 
of the public liberty” (Bl. Com. 269); that, indeed, “there is no lib¬ 
erty, if the power of judging be not separated from the legislative 
and executive powers” (Montesquieu, B. 11, Ch. 6). In other 
words that “the union of these two powers is tyranny” (7 Johns. 
508) ; or, as Mr. Madison observes, may justly be “pronounced the 
very definition of tyranny” (Fed. No. 47); or, in the language of 
Mr. Jefferson, “is precisely the definition of despotic government” 
(Notes on Vir. 195). 

Not a single Constitution therefore, exists in the whole Union, 
which does not adopt this principle of separation as a part of its 
basis. Fed. No. 81; 1 Bl. Apx. 126, Tuck. Ed.; 3 Niles’ Reg. 2; 4 
Niles’ Reg. 400. We are aware, that in Connecticut, till lately, and 
still in New York, a part of their legislature exercise some judicial 
authority. 4 Niles’ Reg. 443. This is probably a relic of the rude 
and monarchical governments of the Eastern world; in some of 
which no division of powers existed in theory, and very little in 
practice. Even in England the executive and judicial departments 
were once united (1 Bl. 267; 2 Hutch. His. 107); and when our 
ancestors emigrated hither, they from imitation, smallness of num¬ 
bers and attachment to popular forms, vested often in one depart¬ 
ment not only distinct, but sometimes universal powers (2 Wil. 
Wks. 50; 1 Minot, His. 27; 1 Hutch. His. 30; 2 Hutch. His. 250, 
414). 

The practice of their assemblies to perform judicial acts (Calder 
and Wife v. Bull et ah, 3 Dal. 386, 1 L. Ed. 648) has contributed to 
produce an impression, that our legislatures can also perform them. 
But it should be remembered, that those assemblies were restrained 
by no Constitutions, and that the evils of this practice (Fed. No. 
44), united with the increase of political science have produced the 
very changes and prohibitions before mentioned. The exceptions 
in Connecticut and New York do not affect the argument; because 
those exceptions are not implied, but detailed in specific terms in 
their charters; and this power, also, as in the House of Lords in 
England, is in those states to be exercised in the form of judgments 
and not of laws; and by one branch, and not by all, of the legisla¬ 
ture. 4 Niles’ Reg. 444. “The entire legislature can perform no 
judiciary act.” Fed. No. 47. * * * 

One great object of Constitutions here (Fed. No. 81) was to limit 
the powers of all the departments of government (Bill of Rights, 
arts. 1, 7, 8, 38) ; and our Constitution contains many express pro¬ 
visions in relation to them, which are wholly irreconcilable with 
the exercise of judicial powers by the legislature, as a branch of the 
judiciary. That clause, which confers upon the “general court” the 


THE THREE DEPARTMENTS OP GOVERNMENT 


21 


authority ‘^to make laws,” provides at the same time, that they 
must not be “repugnant or contrary to the Constitution.” One 
prominent reason for creating the judicial, distinct from the legis¬ 
lative department, was, that the former might determine when 
laws were thus “repugnant,” and so operate as a check upon the 
latter, and as a safeguard to the people against its mistakes or en¬ 
croachments. But the judiciary would in every respect cease to be 
a check on the legislature, if the legislature could at pleasure re¬ 
vise or alter any of the judgments of the judiciary. * * * [The 

law was held also to violate a constitutional prohibition against re¬ 
trospective legislation.] 

The long usage of our legislatures to grant new trials has also 
been deemed an argument in favor of the act under consideration. 
But that usage commenced under colonial institutions, where legis¬ 
lative powers were neither understood nor limited as under our 
present constitution. Since the adoption of that, the usage has 
been resisted by sound civilians, and often declared void by courts 
of law. Though no opinions have been published, and though the 
decisions have been contradictory, yet the following ones appear by 
the records to have adjudged such acts void: Gilman v. McClary, 
Rock., Sept., 1791; Chickering v. Clark, Hills; Butterfield v. Mor¬ 
gan, Ches., May, 1797; Jenness et al., Ex’rs, v. Seavey, Rock., Feb. 
1799. Nor could it be pretended on any sound principles, that the 
usage to pass them, if uninterrupted for the last twenty-seven 
years, would amount to a justification, provided both the letter and 
spirit of the written charter of our liberties forbid them. * * * 

Proceedings quashed. 


CARTER V. COMMONWEALTH. 

(Supreme Court of Appeals of Virginia, 1899. 96 Va. 791, 32 S. E. 780, 45 

L. R. A. 310.) 

[Error to the Circuit Court of Lynchburg. Carter was informed 
by his attorney that his presence in court was necessary at once in a 
case in which he was a party. He falsely telegraphed that he was 
sick and could not come, seeking to obtain a continuance of his 
case. When ordered to appear before the court to show cause why 
he should not be punished for contempt. Carter made an excuse for 
his conduct and asked for a jury trial. The court held his excuse 
insufficient and sentenced him to pay a fine of $25 and be impris¬ 
oned for two days, without a jury trial. Other facts appear in the 
opinion.] 

Keith, P. J. * * * [A Virginia statute of 1830-31 was 
amended in 1897-98 to read as follows:^] 

3 Sec. 3768. The courts and judges may issue attachments for contempt, 
and punish them summarily, only in the following cases, which are hereby 



22 


THE THREE DEPARTMENTS OP GOVERNMENT 


The Constitution now in force (article 6, § 1) provides: ‘‘There 
shall be a supreme court of appeals, circuit courts and county 
courts. The jurisdiction of these tribunals, and of the judges 
thereof, except so far as the same is conferred by this Constitution, 
shall be regulated by law.” In a subsequent portion of the instru¬ 
ment, corporation courts are also provided for the cities of the 
state. These courts do not derive their existence from the legisla¬ 
ture. They are called into being by the Constitution itself, the 
same authority which creates the legislature and the whole frame¬ 
work of state government. 

What was the nature and character of the tribunals thus insti¬ 
tuted? Our conception of courts, and of their powers and func¬ 
tions, comes to us through that great system of English jurispru¬ 
dence known as the “common law,” which we have adopted and in¬ 
corporated into the body of our laws. 

That the English courts have exercised the power in question 
from the remotest period does not admit of doubt. Said Chief Jus¬ 
tice Wilmot: “The power which the courts in Westminster Hall 
have of vindicating their own authority is coeval with their first 
foundation and institution; it is a necessary incident to every court 
of justice, whether of record or not, to fine and imprison for a con¬ 
tempt acted in the face of the court; and the issuing of attachments 
by the supreme court of justice in Westminster Hall for contempts 
out of court stands on the same immemorial usage which supports 
the whole fabric of the common law. It is as much the lex terras, 
and within the exception of Magna Charta, as the issuing of any 
other legal process whatsoever. I have examined very carefully to 
see if I could find out any vestiges orf its introduction, but can find 
none. It is as ancient as any other part of the common law. There 
is no priority or posteriority to be found about it. It cannot, there¬ 
fore, be said to invade the common law. It acts in alliance and 
friendly conjunction with every other provision which the wisdom 
of our ancestors has established for the general good of society. 
Truth compels me to say that the mode of proceeding by attach¬ 
ment stands upon the very same foundation as trial by jury. It 
is a constitutional remedy in particular cases, and the judges in 
those cases are as much bound to give an activity to this part of the 
law as to any other.” 3 Camp. Lives of Ch. Just. p. 153. 

declared to be direct contempts, all other contempts being indirect contempts. 

First. Misbehavior in the presence of the court, or so near thereto as to 
obstruct the administration of justice. 

Second. Violence or threats of violence to a judge or oflicer of the court or 
to a juror, witness or party going to, attending or returning from the court, 
for or in respect of any act or proceeding had or to be had in such court. 

Third. Misbehavior of an officer of the court in his official character. 

Fourth. Disobedience or resistance of an officer of the court, juror or wit¬ 
ness to any lawful process, judgment, decree or order of the said court. 

[If requested by the defendant, provision was made for the trial by jury of 
indirect contempts.] 


THE THREE DEPARTMENTS OF GOVERNMENT 


23 


In United States v. Hudson, 7 Cranch, 32, 3 L. Ed. 259, it was 
held that “certain implied powers must necessarily result to our 
courts of justice from the nature of their institution. But jurisdic¬ 
tion of crimes against the state is not among those powers. To 
fine for contempt, imprison for contumacy, enforce the observance 
of order, etc., are powers which cannot be dispensed with in a 
court, because they are necessary to the exercise of all others; and 
so far our courts no doubt possess powers not immediately derived 
from statute.” 

In Wells V. Com., 21 Grat. (62 Va.) 503, it was said: “The 
power to fine and imprison for contempt is incident to every court 
of record. The courts, ex necessitate, have the power of protecting 
the administration of justice, with a promptness calculated to meet 
the exigency of the particular case.” 

It is unnecessary, however, to multiply authority upon this, point, 
for we understand it to have been conceded by counsel for plaintiff 
in error that the power to punish contempts is inherent in all 
courts; but the contention is that it may be regulated by legislative 
action, and we are prepared to concede that it is proper for the leg¬ 
islature to regulate the exercise of the power so long as it confines 
itself within limits consistent with the preservation of the authority 
of courts to enforce such respect and obedience as is necessary to 
their vigor and efficiency. * * * 

It was contended by counsel for plaintiff in error that, inasmuch 
as the act of 1897-98 merely transferred the punishment of con¬ 
tempts from the court to a jury, and even made acts punishable as 
contempts not embraced within the act of 1830-31, that it was not 
obnoxious to the objection that it interfered with or diminished the 
power of the court to protect itself. 

To this view we cannot assent. It is not a question of the degree 
or extent of the punishment inflicted. It may be that juries would 
punish a given offense with more severity than the court; but yet 
the jury is a tribunal separate and distinct from the court. The 
power to punish for contempts is inherent in the courts, and is con¬ 
ferred upon them by the Constitution by the very act of their crea¬ 
tion. It is a trust confided and a duty imposed upon us by the 
sovereign people, which we cannot surrender or suffer to be im¬ 
paired without being recreant to our duty. 

Upon the point made by counsel for plaintiff in error, that the of¬ 
fense under consideration,^ if not embraced within the category of 
direct contempts by the act of 1897-98, neither was it by that of 
1830-31, we cannot do better than to quote the language of the su¬ 
preme court of Arkansas, in State v. Morrill, 16 Ark. at page 390: 

“The legislature may regulate the exercise of, but cannot abridge, 
the express or necessarily implied powers granted to this court by 
the Constitution. If it could, it might encroach upon both the ju¬ 
dicial and executive departments, and draw to itself all the powers 


24 


THE THREE DEPARTMENTS OF GOVERNMENT 


of government, and thereby destroy that admirable system of checks 
and balances to be found in the organic framework of both the fed¬ 
eral and state institutions, and a favorite theory in the government 
of the American people. 

“As far as the act in question goes, in sanctioning the power of 
the courts to punish, as contempts, the ‘acts’ therein enumerated, 
it is merely declaratory of what the law was before its passage. 
The prohibitory feature of the act can be regarded as nothing more 
than the expression of a judicial opinion by the legislature that 
the courts may exercise and enforce all their constitutional powers, 
and answer all the useful purposes of their creation, without the 
necessity of punishing as a contempt any matter not enumerated 
in the act. As such, it is entitled to great respect; but to say that 
it is absolutely binding upon the courts would be to concede that 
the courts have no constitutional and inherent power to punish 
any class of contempts, but that the whole subject is under the con¬ 
trol of the legislative department, because, if the general assembly 
may deprive the courts of power to punish one class of contempts, 
it may go the whole length, and devest them of power to punish 
any contempt.” 

Reliance was placed by counsel for plaintiff in error upon a class 
of cases of which Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205, 
may be considered typical. In that case Robinson had in the most 
summary manner, without the opportunity of defense, been stricken 
from the roll of attorneys by the district court for the Western dis¬ 
trict of Arkansas. He applied to the supreme court for a manda¬ 
mus, which is the appropriate remedy to restore an attorney who 
has been disbarred, and that court held, Mr. Justice Field delivering 
the opinion, that: “The power to punish for contempts is inherent 
in all courts. Its existence is essential to the preservation of order 
in judicial proceedings, and to the enforcement of the judgments; 
orders, and writs of the courts, and consequently to the due admin¬ 
istration of justice. The moment the courts of the United States 
were called into existence, and invested with jurisdiction over any 
subject, they became possessed of this power. But the power has 
been limited and defined by the act of congress of March 2, 1831,” 
and the court declared that there could be no question as to its 
application to the circuit and district courts. “These courts were 
created by act of congress. Their powers and duties depend upon 
the act calling them into existence, or subsequent acts extending or 
limiting their jurisdiction. The act of 1831 is, therefore, to them 
the law specifying the cases in which summary punishment for 
contempts may be inflicted.” 

Turning to the Constitution of the United States, we find that it 
(article 3, § 1) declares that “the judicial power of the United 
States shall be vested in one supreme court, and in such inferior 
courts as the congress may from time to time ordain and estab- 


THE THREE DEPARTMENTS OP GOVERNMENT 


25 


lish/' This language is the equivalent of that found in our Consti¬ 
tutions prior to that of 1851, hereinbefore quoted. The inferior fed¬ 
eral courts and their jurisdiction are the creatures of congress, and 
not of the Constitution. * * jh 

[Here it is remarked that the federal statute of 1831 is so com¬ 
prehensive as completely to protect the courts, and that their power 
to punish in the enumerated cases is unlimited.] 

The enumeration of subjects punishable as direct contempts in 
the act under consideration seems to embrace almost every con¬ 
ceivable form of that offense which can occur in the presence of, or 
in proximity to, the court; that is to say, under circumstances 
likely to arouse the passion or prejudice of the judge, and disturb 
that equanimity essential to calm and wise judicial action. The 
court may punish summarily not only all such offenses, but for dis¬ 
obedience or resistance to any lawful process, judgment, decree, or 
order; its officers, jurors, and witnesses may also thus be pun¬ 
ished ; and only the parties to the suit are entitled to a trial by jury. 
Thus we see that offenses of a nature personal to the court are 
to be punished by the court, while those which interest suitors are 
punishable only by a jury. So that suitors, having obtained a judg¬ 
ment or decree, after long and expensive litigation, find the court 
powerless to secure to them its fruition-and enjoyment, and, unless 
their antagonist chance to be a law-abiding citizen, discover that 
their success has only begotten another controversy. Ours is a 
law-abiding community, and good citizens will, without compulsion, 
respect the lawful orders of their courts; but in every society there 
are those who obey the laws only because there is behind them a 
force they dare not resist. Is it wise or beneficent legislation which 
accepts the obedience of the good citizen, but is powerless to en¬ 
force the law against the recalcitrant? Under this law, the author¬ 
ity of the courts would be reduced to a mere “power of conten¬ 
tion.” * * * 

Reading the Constitution of the state in the light of the decisions 
of eminent courts which we have consulted, we feel warranted in 
the following conclusions: 

That in the courts created by the Constitution there is an inher¬ 
ent power of self-defense and self-preservation; that this power 
may be regulated, but cannot be destroyed, or so far diminished as 
to be rendered ineffectual by legislative enactment; that it is a 
power necessarily resident in, and to be exercised by, the court it¬ 
self, and that the vice of an act which seeks to deprive the court of 
this inherent power is not cured by providing for its exercise by a 
jury; that, while the legislature has the power to regulate the ju¬ 
risdiction of circuit, county, and corporation courts, it cannot de¬ 
stroy, while it may confine within reasonable bounds, the authority 
necessary to the exercise of the jurisdiction conferred. * * 

We cannot more properly conclude this opinion than by a quota- 


26 


THE THREE DEPARTMENTS OF GOVERNMENT 


tion from a great English judge: ^‘It is a rule founded on the rea¬ 
son of the common law that all contempts to the process of the 
court, to its judges, jurors, officers, and ministers, when acting in 
the due discharge of their respective duties, whether such con¬ 
tempts be by direct obstruction, or consequentially,—that is to say, 
whether they be by act or writing,—are punishable by the court 
itself, and may be abated instanter as nuisances to public justice. 
There are those who object to attachments as being contrary, in 
popular constitutions, to first principles. To this it may briefly 
be replied that they are the first principles, being founded on that 
which founds government and constitutes law. They are the prin¬ 
ciples of self-defense,—the vindication, not only of the authority, 
but of the very power of acting in court. It is in vain that the law 
has the right to act, if there be a power above the law which has a 
right to resist. The law would then be but the right of anarchy 
and the power of contention.” Holt, on Libel, c. 9. * * * 

Judgment affirmed. 


WESTERN UNION TELEGRAPH COMPANY v. MYATT. 

(Circuit Court of the United States, District of Kansas, 1899. 98 Fed. 335.) 

[Application of complainant for a temporary injunction restrain¬ 
ing the Kansas court of visitation from enforcing against com¬ 
plainant certain maximum rates prescribed by it. The facts appear 
in the opinion.] 

Hook, District Judge. The act of the legislature creating the 
court of visitation and defining its jurisdiction and powers, and the 
act fixing the maximum rates for telegraphic service, and confer¬ 
ring jurisdiction respecting telegraph companies upon the court of 
visitation, are parts of the same general body of legislation affect¬ 
ing public service corporations that was enacted at the special ses¬ 
sion of the Kansas legislature of 1898. * * ^ 

The exercise by the state of the power to regulate the conduct of 
a business affected with a public interest, and to fix and determine, 
as a rule for future observance, the rates and charges for services 
^rendered, is wholly a legislative or administrative function. The 
legislature may, in the first instance, prescribe such regulations, and 
fix definitely the tariff of rates and charges; or it may lawfully 
delegate the exercise of such powers, and frequently does, in mat¬ 
ters of detail, to some administrative board or body of its own 
creation. The establishment of warehouse commissions, boards of 
railroad commissioners, and the powers usually committed to them, 
are familiar instances of the delegation of such powers. But by 
whatever name such boards or bodies may be called, or by what 
authority they may be established or created, or however they may 
proceed in the performance of their duties, they are, in respect of 



THE THREE DEPARTMENTS OF GOVERNMENT 27 

the exercise of the powers mentioned, engaged in the exercise of 
legislative or administrative functions as important in their charac¬ 
ter as any that are committed to the legislative branch of the gov¬ 
ernment on the subject of property and property rights. In pre¬ 
scribing regulations or rules of action under the police power of the 
state for the safety and convenience of the public, or in determining 
a schedule of rates and charges for services to be rendered, they are 
in no sense performing judicial functions, nor are they in any re¬ 
spect judicial tribunals. The distinction between legislative and 
judicial functions is a vital one, and it is not subject to alteration 
or change, either by legislative act or by judicial decree, for such 
distinction inheres in the constitution itself, and is as much a part 
of it as though it were definitely defined therein. When the legisla¬ 
ture has once acted, either by itself or through some supplemental 
and subordinate board or body, and has prescribed a tariff of rates 
and charges, then whether its action is violative of some constitu¬ 
tional safeguard or limitation is a judicial question, the determina¬ 
tion of which involves the exercise of judicial functions. The ques¬ 
tion is then beyond the province of legislative jurisdiction. 

As applied to this case, the power of the state to fix or limit the 
charges of telegraph companies for the transmission and delivery of 
telegraphic messages is a legislative on’e, but whether the rates so 
fixed or limited are unreasonable to the extent that the enforcement 
of their observance would amount to a deprivation of the complain¬ 
ant of its property without due process of law and a denial of the 
equal protection of the laws, and therefore violative of the first sec¬ 
tion of the fourteenth amendment to the constitution, is a question 
for the courts. * ^ * h follows, therefore, as a corollary of 

this doctrine, that courts have no power to prescribe a schedule of 
rates and charges for persons engaged in a public or quasi public 
service, because that is a legislative prerogative, and that the legis¬ 
lature has no power to forestall the judgment of the courts by de¬ 
claring that a tariff or schedule prescribed by it is a finality, and 
thus prevent an inquiry into the reasonableness thereof by the 
courts in a controversy properly challenging such reasonableness. 
The legislative prerogative is the power to make the law, to pre¬ 
scribe the regulation or rule of action. The jurisdiction of the 
courts is to construe and apply the law or regulation after it is 
made. The two functions are essentially and vitally different. 

In Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 10 
Sup. Ct. 462, 702, 33 L. Ed. 970, the legislative act authorized a rail¬ 
road and warehouse commission to compel common carriers to 
adopt such rates and charges as the commission “shall declare to 
be equal and reasonable.” The supreme court of the state held 
that the finding of the commission was final and conclusive, and 
that the law neither contemplated nor allowed an issue to be made, 
nor an inquiry to be had, as to their equality and reasonableness in 


28 


THE THREE DEPARTMENTS OF GOVERNMENT 


fact. The supreme court of the United States held that, if this were 
the correct interpretation, and the decision of the state court was 
conclusive upon that point, the law conflicted with the Constitu¬ 
tion of the United States, because it “deprived the company of its 
right to a judicial investigation under the forms and with the ma¬ 
chinery provided by the wisdom of successive ages for the inves¬ 
tigation judicially of the truth of a matter in controversy, and sub¬ 
stituted therefor, as an absolute finality, the action of a railroad 
commission, which in view of the powers conceded to it by the state 
court, could not be regarded as clothed with judicial functions, or 
possessing the machinery of a court of justice.” This decision il¬ 
lustrates to some extent the limit of the power of the legislature in 
respect of such matters. It cannot place its own enactments be¬ 
yond the constitutional jurisdiction of the courts. 

On the other hand, as to the province of the courts, it was said in 
Reagan v. Trust Co., 154 U. S. 362, 397, 14 Sup. Ct. 1047, 1054, 38 
U. Ed. 1014, 1023: “The courts are not authorized to revise or 
change the body of rates imposed by a legislature or a commission. 
They do not determine whether one rate is preferable to another, or 
what, under all circumstances, would be fair and reasonable as be¬ 
tween the carriers and the shippers. They do not engage in any 
mere administrative work. But still there can be no doubt of their 
power and duty to inquire whether a body of rates prescribed by a 
legislature or a commission is unjust and unreasonable, and such as 
to work a practical destruction to rights of property, and, if found 
so to be, to restrain its operation.” * * * 

In the Express Cases, 117 U. S. 1, 29, 6 Sup. Ct. 628, 29 L. Ed. 
791, 803, the court, in speaking of the action of the trial court in 
fixing and regulating the terms upon which the railroad company 
and the express company should do business, said: “In this way, 
as it seems to us, the court has made an arrangement for the busi¬ 
ness intercourse of these companies, such as, in its opinion, they 
ought to have made for themselves. * * * regulation of 

matters of this kind is legislative in its character, not judicial. To 
what extent it must come, if it comes at all, from congress, and to 
what extent it may come from the states, are questions we do not 
now undertake to decide; but that it must come, when it does 
come, from some source of legislative power, we do not doubt.” 

In Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. 
S. 682, 4 Sup. Ct. 192, 28 L. Ed. 297, the court said: “A court of 
chancery is not, any more than is a court of law, clothed with legis¬ 
lative power. It may enforce, in its own appropriate way, the spe¬ 
cific performance of an existing legal obligation arising out of con¬ 
tract, law, or usage, but it cannot create the obligation.’" 
* * * 

In Interstate Commerce Commission v. Cincinnati, N. O. & T. P. 
R. Co., 167 U. S. 499, 17 Sup. Ct. 900, 42 E. Ed. 243, Mr. Justice 


THE THREE DEPARTMENTS OF GOVERNMENT 


29 


Brewer, in delivering the opinion of the court, said: “It is one 
thing to inquire whether the rates which have been charged and 
collected are reasonable,—that is a judicial act; but an entirely dif¬ 
ferent thing to prescribe rates which shall be charged in the future, 
—that is a legislative act.” 

The foregoing will serve to illustrate sufficiently the line of de- 
markation between legislative and judicial functions as respects the 
subject-matter under consideration. * * * 

What, then, is the nature of the powers conferred upon the court 
of visitation? It is apparent from even a cursory examination of 
those parts of the act of the legislature which define the primary 
powers and jurisdiction of that body that they are largely of a legis¬ 
lative or administrative character, and such as do not pertain to the 
functions of a court. It is difficult to define the precise difference 
between those that are legislative and those that are administra¬ 
tive. It is unnecessary, however, to do so in this case, for it is im¬ 
material whether the powers of that court, so called, aside from 
those that are judicial, are of the one character or of the other, or 
are a blending of both. A court does not (to use the language of 
the act) “classify freight,” nor “require the construction and main¬ 
tenance of depots, switches, side tracks, stock yards, cars, and other 
facilities for the public convenience,” nor “regulate crossings and 
intersections of railroads,” nor “regulate the operation of trains” 
over such crossings and intersections, nor “prescribe rules concern¬ 
ing the movements of trains to secure the safety of employes and 
the public,” nor “require the use of improved appliances and meth¬ 
ods to avoid accidents and injuries to persons,” nor “apportion 
transportation charges among connecting carriers,” nor “regulate 
charges for part car-load and mixed car-load lots of freight, includ¬ 
ing live stock,” nor prescribe what rates of transportation of freight 
and passengers shall be charged. The regulation of such matters 
is legislative in its character, not judicial. The Express Cases, 
supra. 

Of course, courts of chancery, in the exercise of their equity ju¬ 
risdiction, may, and frequently do, through the medium of re¬ 
ceivers, appointed by them, exercise some of such powers in the 
administration of property which is the subject-matter of litiga¬ 
tion in such courts, and especially where, in order to preserve the 
value of such property while it is in the possession of the court, it 
is necessary to continue the operation thereof, and maintain it as 
a going concern. But it is not in such sense that these powers 
were conferred upon the court of visitation. Courts also have the 
undoubted power to determine some of these matters, if they prop¬ 
erly lie in the road to the ultimate adjudication of other existing 
controversies concerning which the jurisdiction of the court has 
been invoked; as, by way of illustration, where, in litigation over 
the destruction of life or property in a railroad accident, it be- 


30 


THE THREE DEPARTMENTS OF GOVERNMENT 


comes material to ascertain whether the company used proper ap¬ 
pliances and methods to avoid such an occurrence. Nor is it to 
this end that the powers mentioned were conferred upon the court 
of visitation. The exercise of the powers granted contemplates 
the prescribing of rules and regulations for future guidance, and 
the possession of such powers by the court of visitation makes it 
one of the potential agencies of the legislative department of the 
state. To use the expression of a learned justice of the supreme 
court, the court of visitation, in respect of such functions, is “an 
active, seeking, supervising body; the eye and the activity of the 
state.” As to such powers and duties the court of visitation is 
not, and cannot be, a court. Practically all of the powers then pos¬ 
sessed by the board of railroad commissioners of Kansas, which 
was purely an administrative body, were conferred upon the court 
of visitation, and as an evidence of the legislative purpose and 
intent the then existing laws relating to the appointment, powers, 
and duties of the board of railroad commissioners were, by act of 
the legislature, repealed a few days after the passage of the act 
creating the court of visitation. * * * 

It was argued at the bar on behalf of the defendants that the 
powers conferred upon the court of visitation are judicial in their 
character, for the reason that the. law contemplates an investiga¬ 
tion and consideration on the part of the court before final action 
is had; and it is particularly recalled that such contention was 
made with reference to paragraphs 8 and 9 of section 8 of the 
act, which authorize the court of visitation to “prescribe rules con¬ 
cerning the movements of trains to secure the safety of employes 
and the public, and to require the use of improved appliances and 
methods to avoid accidents and injuries to persons.” Investiga¬ 
tion as a precedent to action is not exclusively an attribute of a 
judicial proceeding. Counsel confounds the usual legislative in¬ 
quiry which precedes the passage of laws with the judicial con¬ 
sideration of a controversy in a court of justice. It certainly 
would not be claimed that the hearing and consideration by com¬ 
mittees of legislative bodies of the views and opinions of men 
having special knowledge of matters to be affected by proposed 
legislation constitute in any sense the exercise of judicial func¬ 
tions, or that such committees are judicial tribunals. Nor does 
it follow that, because the exercise of the powers conferred upon 
the court of visitation requires the use of judgment and discretion, 
such powers are judicial in their nature, as that would make every 
executive act and legislative act requiring judgment and discre¬ 
tion a judicial act. To use the language of the supreme court of 
Kansas in The Auditor v. Railroad Co., 6 Kan. 509, 7 Am. Rep. 
575: “It certainly could not be so in the sense in which our Con¬ 
stitution uses the term, or it would, of necessity, obliterate the 
lines by which the framers of that instrument sought to keep 


THE THREE DEPARTMENTS OF GOVERNMENT 


31 


separate and distinct the three branches of our government/’ As 
v^as said in Re Huron, 58 Kan. 156, 48 Pac. 576, 36 L. R. A. 824, 
62 Am. St. Rep. 614: “Not every one v^ho hears testimony and 
percises discretion and judgment in a matter submitted to him 
is necessarily a judicial officer.” 

Counsel say: “The decision of a question which may arise be¬ 
tween different railroad companies as to how much of a certain 
charge each shall have is as much a judicial function as to decide 
how much of an estate each of the heirs shall receive.” That may 
be true where there is such a controversy pending in a court be¬ 
tween the railroad companies themselves, but that is not the sense 
in which the power is conferred upon the court of visitation. The 
intent of the act of the legislature was, not to authorize the ad¬ 
judication of distinct controversies of that character between con¬ 
tending railroad companies, but, instead thereof, the laying down 
of a rule in behalf of the state and the public, and the securing 
of the future obedience thereto by the imposition of fine and im¬ 
prisonment. Is not that process legislation, and is not the result 
a regulation or a law? 

The fact that the legislature denominated the tribunal a court is 
not conclusive as to its true character, nor as to the nature of the 
jurisdiction and powers conferred upon- it. That question is not 
determined by the terminology employed in the act, although the 
legislative purpose and intent may be evidenced thereby, but it 
is determined rather by the ascertainment of the essential nature 
of the jurisdiction and powers themselves. The Constitution of 
the state of Kansas authorizes the creation of courts inferior to 
the supreme court by act of the legislature, and, by necessary im¬ 
plication, the defining of the jurisdiction of the courts so created. 
Article 3, § 1. Nevertheless such jurisdiction must, in all essential 
particulars, be judicial in its character, and the constitutional au¬ 
thority for other courts than those specifically named in the Con¬ 
stitution must be so construed and limited. Under the Constitu¬ 
tion, the legislature may not create a court for the exercise of its 
own legislative functions, or for the performance of purely admin¬ 
istrative or executive duties; and though a tribunal, as consti¬ 
tuted by legislative act, may be denominated a court, may possess 
a seal, and be clothed with the usual and customary vesture of a 
judicial tribunal, yet its real character is determined by its juris¬ 
diction and the functions it is empowered to exercise. The legis¬ 
lature may create a court of visitation, but it can only be a court 
in respect of matters of a judicial nature, and such as are properly 
incidental thereto. It is clear, however, that it was the intention 
of the legislature in the enactment of the law to confer certain 
judicial powers upon the court of visitation in respect of'the same 
matters over which that court was authorized to exercise legis¬ 
lative and administrative functions. It was clearly the legislative 


32 THE THREE DEPARTMENTS OF GOVERNMENT 

intent to confer upon the court of visitation not only the power to 
prescribe rules and regulations for the government of railroad and 
telegraph companies in their relations to the public and to each 
other, but also the power to pass judicially upon the validity of 
such rules and regulations, to render judgment accordingly, and 
full power to execute their orders and judgments. By the lan¬ 
guage of the act under consideration, the court of visitation can 
prescribe a tariff of rates and charges, judicially determine the 
reasonableness thereof, and then enforce their judicial determina¬ 
tions in as radical and complete a method as could be devised. 
Concisely stated, the court of visitation may make laws, sit ju¬ 
dicially upon their own acts, and then enforce their enactments 
which have received their judicial sanction. Can this be done? 
* * * 

Counsel also contend that there is no provision of the Constitu¬ 
tion of the state of Kansas inhibiting the commingling of legisla¬ 
tive, judicial, and executive powers, and the conferring by the 
legislature of the functions of one department upon the other. 
* * * But there is no such omission in the Constitution of 

Kansas. It provides as follows: Article 1, § 1: “The executive 
department shall consist of a governor, lieutenant governor, secre¬ 
tary of state, auditor, treasurer, attorney general and superintend¬ 
ent of public instruction,” etc. Article 2, § 1: “The legislative 
power of this state shall be vested in a house of representatives 
and senate.” Article 3, ,§ 1: “The judicial power of this state 
shall be vested in a supreme court, district courts, probate courts, 
justices of the peace, and such other courts inferior to the supreme 
court as may be provided by law,” etc. 

That, in a broad sense, the powers of one of these departments 
shall not be conferred upon either of the others, is not only within 
the true spirit of these provisions, but also substantially within 
the letter thereof; and the addition thereto of an express prohib¬ 
itory declaration, such as is contained in the Constitutions of some 
of the states, that the powers of one department shall not be ex¬ 
ercised by another, would add very little to their efifect, so far as 
concerns the question under consideration. The universal doc¬ 
trine of American liberty under written Constitutions requires the 
distribution of all the powers of government among three depart¬ 
ments,—legislative, judicial, and executive,—and that each, within 
its appropriate sphere, be supreme, co-ordinate with, and inde¬ 
pendent of, both the others. * * * 

There is a full accord among elementary writers and publicists 
who treat of the growth and development of the principles of an 
enlightened government and the relations between the state and 
the individual. Dr. Paley says: “The first maxim of a free state 
is that the laws be made by one set of men and administered by 


THE THREE DEPARTMENTS OF GOVERNMENT 


33 


another; in other words, that the legislative and judicial charac¬ 
ters be kept separate.” Moral Philosophy, bk. 6, c. 8. 

Blackstone says: “In this distinct and separate existence of the 
judicial power in a peculiar body of men, nominated, indeed, but 
not removable at pleasure, by the crown, consists one main pre¬ 
servative of the public liberty, which cannot subsist long in any 
state unless the administration of common justice be in some de¬ 
gree separated both from the legislative and also from the execu¬ 
tive power. Were it joined with the legislative, the life, liberty, 
and property of the subject would be in the hands of arbitrary 
judges, whose decisions would be then regulated only by their 
own opinions, and not by any fundamental principles of law, 
which, though legislators may depart from, yet judges are bound 
to observe. Were it joined with the executive, this union might 
soon be an overbalance for the legislative.” 1 Bl. Comm. 269. 

Baron Montesquieu writes: “When the legislative and execu¬ 
tive powers are united in the same person, or the same body of 
magistrates, there can be no liberty, because apprehensions may 
arise, lest the same monarch or senate should enact tyrannical 
laws, to execute them in a tyrannical manner. Again, there is no 
liberty of the judiciary power if it be not separated from the leg¬ 
islative and executive. Were it joined with the legislative, the life 
and liberty of the subject would be exposed to arbitrary control; 
for the judge would be the legislator. Were it joined to the ex¬ 
ecutive power, the judge might behave with violence and oppres¬ 
sion. There would be an end of everything were the same man, 
or the same body, whether of nobles or of the people, to exercise 
these three powers,—that of enacting laws, that of executing the 
public resolutions, and of trying the causes of individuals.” Spirit 
of Laws, bk. 11, c. 6. 

It is true that this is ancient doctrine, but it serves no ill pur¬ 
pose to renew familiarity therewith, especially in times when it is 
claimed that the complexity of commercial affairs affords sufficient 
cause to either undermine or openly destroy those safeguards that 
are deemed so essential to the permanency of a free government. 

In the distribution of the powers of government between the 
three departments the federal Constitution is as general in its pro¬ 
visions as that of the state of Kansas. There is the same absence 
of any positive and specific prohibition against the conferring of 
the powers of the one upon the other. In Kilbourn v. Thompson 
[103 U. S. 191, 26 L. Ed. 377] it was said: “It is believed to be 
one of the chief merits of the American system of written consti¬ 
tutional law that all the powers intrusted to government, whether 
state or national, are divided into the three grand departments, 
the executive, the legislative, and the judicial; that the functions 
appropriate to each of these branches of government shall be 
Hall Cases Const.L.—3 


34 


THE THREE DEPARTMENTS OF GOVERNMENT 


vested in a separate body of public servants, and that the perfec¬ 
tion of the system requires that the lines which separate and 
divide these departments shall be broadly and clearly defined. It 
is also essential to the successful working of this system that the 
persons intrusted with power in any one of these branches shall 
not be permitted to encroach upon the powers confided to the 
others, but that each shall, by the law of its creation, be limited 
to the exercise of the powers appropriated to its own department, 
and no other. * * * The Constitution declares that the ju¬ 

dicial power of the United States shall be vested in one supreme 
court, and in such inferior courts as the congress may, from time 
to time, ordain and establish. If what we have said of the divi¬ 
sion of the powers of the government among the three depart¬ 
ments be sound, this is equivalent to a declaration that no judicial 
power is vested in the congress, or either branch of it, save in 
the cases specifically enumerated to which we have referred.” 
* * 

The decisions of the supreme court of Kansas upon the inter¬ 
pretation of the fundamental law of the state in regard to this 
question and the application thereof to legislative enactments are 
to the same effect, and in such matters they are binding upon this 
court. * * * [Here follow quotations from In re Huron, 58 

Kan. 152, 48 Pac. 576, 36 L. R. A. 824, 62 Am. St. Rep. 614, In re 
Sims, 54 Kan. 1, 37 Pac. 135, 25 U. R. A. 110, 45 Am. St. Rep. 261, 
and Auditor v. Ry. Co., 6 Kan. 500, 7 Am. Rep. 575.] Following 
the decisions of the highest court in the state, I am therefore con¬ 
strained to hold that the act of the legislature is violative of the 
provisions of the Constitution of the state of Kansas. * * * 

Temporary injunction granted.^ 

4 The Virginia Constitution of 1902 provided (sections 155, 156) for a Cor¬ 
poration Commission in which various powers were united. Of this it was 
said by Harrison, J., in Winchester & S. Ry. Co. v. Commonwealth, 106 Va. 
264, 267-270, 55 S. E. 692, 693 (1906) [approved in Prentis v. Atlantic Coast 
Line Co., 211 U. S. 210, 225, 29 Sup. Ct. 67, 53 L. Ed. 150 (1908)]: 

“This court has recognized the validity of the State Corporation Commis¬ 
sion as a legally constituted tribunal of the state, clothed with legislative, 
judicial, and executive powers. Atlantic Coast Line v. Commonwealth, 102 
Va. 599, 46 S. E. 911; Norfolk, etc., Co. v. Commonwealth, 103 Va. 294, 49 S. 
E. 39. In the last-named case, at page 295 of 103 Va., page 41 of 49 S. E., it 
is said: ‘The State Corporation Commission, created by constitutional au¬ 
thority, is the instrumentality through which the state exercises its govern¬ 
mental power for the regulation and control of public service corporations. 
For that purpose it has been clothed with legislative, judicial, and executive 
powers.’ * * * [Here follow references to the exercise of both legislative 

and judicial powers by the British House of Lords; to Calder v. Bull, 3 Dali. 
386, 394, 395, 1 L. Ed. 648, denying that the federal Constitution forbade a 
state legislature to exercise judicial functions, as by granting new trial; and 
to Satterlee v. Matthewson, 2 Pet. 380, 413, 7 L. Ed. 458.] 

“The doctrine that it is competent for a state to unite in one board or 
tribunal some of the legislative, executive, and judicial powers of the govern¬ 
ment, as well as the further proposition, that when a state does this, it vio¬ 
lates no prohibition of the federal Constitution, and that any such question 
is one for the determination of the state, its action in the matter being ac- 


THE FEDERAL EXEOUTIVH 


35 


THE FEDERAL EXECUTIVE » 


STATE OF MISSISSIPPI v. JOHNSON. 

(Supreme Court of United States, 18G7. 4 Wall. 475, 18 L. Ed. 437.) 

[Original proceeding to enjoin the enforcement in Mississippi 
of certain federal statutes providing for the government by mili¬ 
tary commanders under authority of Congress of certain of the 
Southern states lately in rebellion. President Johnson b^d vetoed 
them as unconstitutional, and they had been passed over his veto.] 

Mr. Chief Justice Chaser. A motion was made, some days since, 
in behalf of the state of Mississippi, for leave to file a bill in the 
name of the state, praying this court perpetually to enjoin and 
restrain Andrew Johnson, President of the United States, and E. 
O. C. Ord, general commanding in the district of Mississippi and 
Arkansas, from executing, or in any manner carrying out, certain 
acts of Congress therein named. The acts referred to are those of 
March 2 and March 23, 1867, commonly known as the Reconstruc¬ 
tion Acts. The Attorney General objected to the leave asked for, 
upon the ground that no bill which makes a President a defendant, 
and seeks an injunction against him to restrain the performance 
of his duties as President, should be allowed to be filed in this 
court. This point has been fully argued, and we will now dis¬ 
pose of it. 

cepted as final, is well supported by the more recent case of Dreyer v. Illinois, 
187 U. S. 71, 84, 23 Sup. Ct. 28, 32 (47 L. Ed. 79) in which Mr. Justice Harlan, 
delivering the unanimous opinion of the court, says: ‘Whether the legislative, 
executive, and judicial powers of a state shall be kept altogether distinct and 
separate, or whether persons or collections of persons, belonging to one de¬ 
partment, may, in respect to some matters, exert powers which, strictly speak¬ 
ing, pertain to another department of government, is for the determination 
of the state, and its determination one way or the other cannot be an ele¬ 
ment in the inquiry whether the due process of law prescribed by the four¬ 
teenth amendment has been respected by the state or its representatives when 
dealing with matters involving life or liberty. “When we speak,” said Story, 
“of a separation of the three great departments of government, and maintain 
that that separation is indispensable to public liberty, we are to understand 
this maxim in a limited sense. It is not meant to affirm that they must be 
kept wholly and entirely separate and distinct, and have no common link or 
dependence, the one upon the other, in the slightest degree. The true meaning 
is that the whole power of one of these departments should not be exercised 
by the same hands which possess the whole power of either of the other de¬ 
partments ; and that such exercise of the whole would subvert the principles 
of a free Constitution.” Story’s Const. (5th Ed.) 393. Again: “Indeed, there 
is not a single Constitution of any state in the Union which does not prac¬ 
tically embrace some acknowledgment of the maxim, and at the same time 
some admixture of powers constituting an exception to it.” Story’s Const. 
(5th Ed.) 395.’ ” 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 66, 69. 



36 


THE FEDERAL EXECUTIVE 


We shall limit our inquiry to the question presented by the ob¬ 
jection, without expressing any opinion on the broader issues dis¬ 
cussed in argument, whether, in any case, the President of the 
United States may be required, by the process of this court, to per¬ 
form a purely ministerial act under a positive law, or may be held 
amenable, in any case, otherwise than by impeachment for crime. 
The single point which requires consideration is this: Can the 
President be restrained by injunction from carrying into effect an 
act of Congress alleged to be unconstitutional? 

It is assumed by the counsel for the state of Mississippi, that the 
President, in the execution of the Reconstruction Acts, is required 
to perform a mere ministerial duty. In this assumption there is, 
we think, a confounding of the terms ministerial and executive, 
which are by no means equivalent in import. A ministerial duty, 
the performance of which may, in proper cases, be required of the 
head of a department, by judicial process, is one in respect to which 
nothing is left to discretion. It is a simple, definite duty, arising 
under conditions admitted or proved to exist, and imposed by law. 

The case of Marbury v. Madison, Secretary of State, 1 Cranch, 
137, 2 U. Ed. 60, furnishes an illustration. A citizen had been nom¬ 
inated, confirmed, and appointed a justice of the peace for the Dis¬ 
trict of Columbia, and his commission had been made out, signed, 
and sealed. Nothing remained to be done except delivery, and the 
duty of delivery was imposed by law on the Secretary of State. 
It was held that the performance of this duty might be enforced 
by mandamus issuing from a court having jurisdiction. So, in the 
case of Kendall, Postmaster General, v. Stockton & Stokes, 12 Pet. 
527, 9 E. Ed. 1181, an act of Congress had directed the Postmaster 
General to credit Stockton & Stokes with such sums as the Solici¬ 
tor of the Treasury should find due to them; and that officer re¬ 
fused to credit them with certain sums, so found due. It was held 
that the crediting of this money was a mere ministerial duty, the 
performance of which might be judicially enforced. In each of 
these cases nothing was left to discretion. There was no room for 
the exercise of judgment. The law required the performance of a 
single specific act; and that performance, it was held, might be 
required by mandamus. 

Very different is the duty of the President in the exercise of the 
power to see that the laws are faithfully executed, and among 
these laws the acts named in the bill. By the first of these acts he 
is required to assign generals to command in the several military 
districts, and to detail sufficient military force to enable such officers 
to discharge their duties under the law. By the supplementary 
act, other duties are imposed on the several commanding generals, 
and these duties must necessarily be performed under the super¬ 
vision of the President as commander in chief. The duty thus im- 


THE FEDERAL EXECUTIVE 


37 


posed on the President is in no just sense ministerial. It is purely 
executive and political. 

An attempt on the part of the judicial department of the govern¬ 
ment to enforce the performance of such duties by the President 
might be justly characterized, in the language of Chief Justice 
Marshall, as “an absurd and excessive extravagance.’^ It is true 
that in the instance before us the interposition of the court is not 
sought to enforce action by the executive under constitutional leg¬ 
islation, but to restrain such action under legislation alleged to 
be unconstitutional. But we are unable to perceive that this cir¬ 
cumstance takes the case out of the general principles which for¬ 
bid judicial interference with the exercise of executive discretion. 

It was admitted in the argument that the application now made 
to us is without a precedent; and this is of much weight against 
it. Had it been supposed at the bar that this court would, in any 
case, interpose, by injunction, to prevent the execution of an uncon¬ 
stitutional act of Congress, it can hardly be doubted that applica¬ 
tions with that object would have been heretofore addressed to it. 
Occasions have not been wanting. The constitutionality of the act 
for the annexation of Texas was vehemently denied. It made im¬ 
portant and permanent changes in the relative importance of states 
and sections, and was by many supposed to be pregnant with 
disastrous results to large interests in particular states. But no 
one seems to have thought of an application for an injunction 
against the execution of the act by the President. And yet it is 
difficult to perceive upon what principle the application now before 
us can be allowed and similar applications in that and other cases 
have been denied. The fact that no such application was ever be¬ 
fore made in any case indicates the general judgment of the profes¬ 
sion that no such application should be entertained. 

It will hardly be contended that Congress can interpose, in any 
case, to restrain the enactment of an unconstitutional law; and yet 
how can the right to judicial interposition to prevent such an enact¬ 
ment, when the purpose is evident and the execution of that pur¬ 
pose certain, be distinguished, in principle, from the right to such 
interposition against the execution of such a law by the President? 
The Congress is the legislative department of the government; 
the President is the executive department. Neither can be re¬ 
strained in its action by the judicial department; though the acts 
of both, when performed, are, in proper cases, subject to its cog¬ 
nizance. 

The impropriety of such interference will be clearly seen upon 
consideration of its possible consequences. Suppose the bill filed 
and the injunction prayed for allowed. If the President refuse 
obedience, it is needless to observe that the court is without power 
to enforce its process. If, on the other hand, the President com¬ 
plies with the order of the court and refuses to execute the acts of 


38 


THE FEDERAL EXECUTIVE 


Congress, is it not clear that a collision may occur between the 
executive and legislative departments of the government? May 
not the House of Representatives impeach the President for such 
refusal? And in that case could this court interfere, in behalf of the 
President, thus endangered by compliance with its mandate, and 
restrain by injunction the Senate of the United States from sitting 
as a court of impeachment? Would the strange spectacle be of¬ 
fered to the public world of an attempt by this court to arrest pro¬ 
ceedings in that court? These questions answer themselves. 

It is true that a state may file an original bill in this court. And 
it may be true, in some cases, that such a bill may be filed against 
the United States. But we are fully satisfied that this court has 
no jurisdiction of a bill to enjoin the President in the performance of 
his official duties; and that no such bill ought to be received by us. 

It has been suggested that the bill contains a prayer that, if the 
relief sought cannot be had against Andrew Johnson, as President, 
it may be granted against Andrew Johnson as a citizen of Ten¬ 
nessee. But it is plain that relief as against the execution of an 
act of Congress by Andrew Johnson, is relief against its execution 
by the President. A bill praying an injunction against the execu¬ 
tion of an act of Congress by the incumbent of the presidential 
office cannot be received, whether it describes him as President or 
as a citizen of a state. 

Motion denied. 


LUTHER v. BORDEN. 

(Supreme Court of United States, 1849. 7 How. 1, 12 L. Ed. 581.) 

[Error to the federal Circuit Court for Rhode Island from a judg¬ 
ment for defendant in an action of trespass for breaking into plain¬ 
tiff’s house. The facts appear in Koehler v. Hill, pp. 2-3, ante. | 

Mr. Chief Justice Taney. * * * 'phe Constitution of the 
United States, as far as it has provided for an emergency of this 
kind, and authorized the general government to interfere in the 
domestic concerns of a state, has treated the subject as political 
in its nature, and placed the power in the hands of that depart¬ 
ment. 

The fourth section of the fourth article of the Constitution of 
the United States provides that the United States shall guarantee 
to every state in the Union a republican form of government, and 
shall protect each of them against invasion; and on the application 
of the legislature or of the executive (when the legislature can¬ 
not be convened) against domestic violence. 

Under this article of the Constitution it rests with Congress to 
decide what government is the established one in a state. For 
as the United States guarantee to each state a republican govern- 



THE FEDERAL EXECUTIVE 


39 


ment, Congress must necessarily decide what government is es¬ 
tablished in the state before it can determine whether it is repub¬ 
lican or not. And when the senators and representatives of a state 
are admitted into the councils of the Union, the authority of the 
government under which they are appointed, as well as its republi¬ 
can character, is recognized by the proper constitutional authority. 
And its decision is binding on every other department of the gov¬ 
ernment, and could not be questioned in a judicial tribunal. It is 
true that the contest in this case did not last long enough to bring 
the matter to this issue; and as no senators or representatives were 
elected under the authority of the government of which Mr. Dorr 
was the head, Congress was not called upon to decide the contro¬ 
versy. Yet the right to decide is placed there, and not in the courts. 

So, too, as relates to the clause in the above-mentioned article 
of the Constitution, providing for cases of domestic violence. It 
rested with Congress, too, to determine upon the means proper to 
be adopted to fulfil this guarantee. They might, if they had deemed 
it most advisable to do so, have placed it in the power of a court to 
decide when the contingency had happened which required the 
federal government to interfere. But Congress thought otherwise, 
and no doubt wisely; and by the Act of February 28, 1795, pro¬ 
vided that, “in case of an insurrection in any state against the gov¬ 
ernment thereof, it shall be lawful for the President of the United 
States, on application of the legislature of such state or of the 
executive, when the legislature cannot be convened, to call forth 
such number of the militia of any other state or states, as may be 
applied for, as he may judge sufficient to suppress such insurrec¬ 
tion.’^ 

By this act, the power of deciding whether the exigency had 
arisen upon which the government of the United States is bound 
to interfere, is given to the President. He is to act upon the ap¬ 
plication of the legislature, or of the executive, and consequently 
he must determine what body of men constitute the legislature, 
and who is the governor, before he can act. The fact that both 
parties claim the right to the government, cannot alter the case, 
for both cannot be entitled to it. If there is an armed conflict, like 
the one of which we are speaking, it is a case of domestic violence, 
and one of the parties must be in insurrection against the lawful 
government. And the President must, of necessity, decide which 
is the government, and which party is unlawfully arrayed against 
it, before he can perform the duty imposed upon him by the act 
of Congress. 

After the President has acted and called out the militia, is a Cir¬ 
cuit Court of the United States authorized to inquire whether his 
decision was right? Could the court, while the parties were actu¬ 
ally contending in arms for the possession of the government, call 
witnesses before it, and inquire which party represented a majority 


40 


THE FEDERAL EXECUTIVE 


of the people? If it could, then it would become the duty of the 
court (provided it came to the conclusion that the President had 
decided incorrectly) to discharge those who were arrested or de¬ 
tained by the troops in the service of the United States, or the gov¬ 
ernment which the President was endeavoring to maintain. If the 
judicial power extends so far, the guarantee contained in the Con¬ 
stitution of the United States is a guarantee of anarchy, and not 
of order. Yet if this right does not reside in the courts when the 
•conflict is raging—if the judicial power is, at that time, bound to 
follow the decision of the political, it must be equally bound when 
the contest is over. It cannot, when peace is restored, punish as 
offences and crimes the act which it before recognized, and was 
bound to recognize, as lawful. 

It is true that in this case the militia were not called out by the 
President. But upon the application of the governor under the 
charter government, fhe President recognized him as the executive 
power of the state, and took measures to call out the militia to 
support his authority, if it should be found necessary for the gen¬ 
eral government to interfere; and it is admitted in the argument 
that it was the knowledge of this decision that put an end to the 
armed opposition to the charter government, and prevented any fur¬ 
ther efforts to establish by force the proposed Constitution. The 
interference of the President, therefore, by announcing his deter¬ 
mination; was as effectual as if the militia had been assembled 
under his orders. And it should be equally authoritative. For 
certainly no court of the United States with a knowledge of this 
decision, would have been justified in recognizing the opposing 
party as the lawful government, or in treating as wrong-doers or 
insurgents the officers of the government which the President had 
recognized, and was prepared to support by an armed force. In 
the case of foreign nations, the government acknowledged by the 
President is always recognized in the courts of justice. And this 
principle has been applied .by the act of Congress to the sovereign 
states of the Union. 

It is said that this power in the President is dangerous to liberty, 
and may be abused. All power may be abused if placed in un¬ 
worthy hands. But it would, be difficult, we think, to point out any 
other hands in which this power would be more safe, and at the 
same time equally effectual. When citizens of the same state are 
in arms against each other, and the constituted authorities unable 
to execute the laws, the interposition of the United States must be 
prompt, or it is of little value. The ordinary course of proceedings 
in courts of justice would be utterly unfit for the crisis. And the 
elevated office of the President, chosen as he is by the people of 
the United States, and the high responsibility he could not fail to 
feel when acting in a case of so much moment, appear to furnish 


THE FEDERAL EXECUTIVE 


41 


as strong safeguards against a wilful abuse of power as human 
prudence and foresight could well provide. At all events, it is con¬ 
ferred upon him by the Constitution and laws of the United States, 
and must, therefore, be respected and enforced in its judicial tri¬ 
bunals. 

A question very similar to this arose in the case of Martin v. 
Mott, 12 Wheat. 29-31, 6 L. Ed. 537. The first clause of the first 
section of the Act of February 28, 1795, of which we have been 
speaking, authorizes the President to call out the militia to repel 
invasion. It is the second clause in the same section which au¬ 
thorizes the call to suppress an insurrection against a state gov¬ 
ernment. The power given to the President in each case is the 
same, with this difference only, that it cannot be exercised by him 
in the latter case, except upon the application of the legislature or 
executive of the state. The case above mentioned arose out of a 
call made by the President, by virtue of the power conferred by 
the first clause; and the court said that “whenever a statute gives 
a discretionary power to any person, to be exercised by him upon 
his own opinion of certain facts, it is a sound rule of construction 
that the statute constitutes him the sole and exclusive judge of the 
existence of those facts.” The grounds upon which that opinion 
is maintained are set forth in the report, and, we think, are conclu¬ 
sive. The same principle applies to the case now before the court. 
Undoubtedly, if the President, in exercising this power, shall fall 
into error, or invade the rights of the people of the state, it would 
be in the power of Congress to apply the proper remedy. But the 
courts must administer the law as they find it. 

The remaining question is, whether the defendants, acting under 
military orders issued under the authority of the government, were 
justified in breaking and entering the plaintiff’s house. In relation 
to the act of the legislature declaring martial law, it is not neces¬ 
sary in the case before us to inquire to what extent, nor under 
what circumstances, that power may be exercised by a state. Un¬ 
questionably, a military government, established as the permanent 
government of the state, would not be a republican government, 
and it would be the duty of Congress to overthrow it. But the 
law of Rhode Island evidently contemplated no such government. 
It was intended merely for the crisis, and to meet the peril in which 
the existing government was placed by the armed resistance to 
its authority. It was so understood and construed by the state 
authorities. And, unquestionably, a state may use its military 
power to put down an armed insurrection, too strong to be con¬ 
trolled by the civil authority. The power is essential to the exist¬ 
ence of every government, essential to the preservation of order 
and free institutions, and is as necessary to the states of this Union, 
as to any other government. The state itself must determine what 
degree of force the crisis demands. And if the government of 


42 


THE FEDERAL EXECUTIVE 


Rhode Island deemed the armed opposition so formidable, and so 
ramified throughout the state as to require the use of its military 
force and the declaration of martial law, we see no ground upon 
which this court can question its authority. It was a state of war, 
and the established government resorted to the rights and usages 
of war to maintain itself, and to overcome the unlawful opposi¬ 
tion. And in that state of things the officers engaged in its military 
service might lawfully arrest any one, who, from the information 
before them, they had reasonable grounds to believe was engaged 
in the insurrection; and might order a house to be forcibly entered 
and searched, when there were reasonable grounds for supposing 
he might be there concealed. Without the power to do this, mar¬ 
tial law and the military array of the government would be mere 
parade, and rather encourage attack than repel it. No more force, 
however, can be used than is necessary to accomplish the object. 
And if the power is exercised for the purposes of oppression, or 
any injury wilfully done to person or property, the party by whom, 
or by whose order, it is committed, would undoubtedly be answer- 
able. * sK * 

Much of the argument on the part of the plaintiff turned upon 
political rights and political questions, upon which the court has 
been urged to express an opinion. We decline doing so. The high 
power has been conferred on this court of passing judgment upon 
the acts of the state sovereignties, and of the legislative and execu¬ 
tive branches of the federal government, and of determining wheth¬ 
er they are beyond the limits of power marked out for them re¬ 
spectively by the Constitution of the United States. This tribunal, 
therefore, should be the last to overstep the boundaries which limit 
its own jurisdiction. And while it should always be ready to meet 
any question confided to it by the Constitution, it is equally its 
duty not to pass beyond its appropriate sphere of action, and to take 
care not to involve itself in discussions which properly belong to 
other forums. No one, we believe, has ever doubted the proposi¬ 
tion that, according to the institutions of this country, the sover¬ 
eignty in every state resides in the people of the state, and that 
they may alter and change their form of government at their own 
pleasure. But whether they have changed it or not, by abolishing 
an old government, and establishing a new one in its place, is a 
question to be settled by the political power. And when that power 
has decided, the courts are bound to take notice of its decision, and 
to follow it. 

Judgment affirmed. 


FEDERAL JURISDICTION 


43 


JURISDICTION OF FEDERAL COURTS " 


OSBORN ET AL. V. PRESIDENT, etc., OF THE BANK OF THE 
UNITED STATES. 

(Supreme Court of United States, 1824. 9 Wheat. 738, 6 L. Ed. 204.) 

[Appeal from the federal Circuit Court for Ohio. The Bank of 
the United States, chartered by Congress, brought suit in said court, 
as authorized by its charter, to restrain Osborn and others, state 
officers, from collecting a state tax upon the bank. The defend¬ 
ants appealed from a decree against them.] 

Mr. Chief Justice Marshall. * * * We will now consider 

the constitutionality of the clause in the act of incorporation, which 
authorizes the bank to sue in the federal courts. * * * 

The third article [of the Constitution] declares, “that the judi¬ 
cial power shall extend to all cases in law and equity arising under 
this Constitution, the laws of the United States, and treaties made, 
or which shall be made, under their authority.” This clause en¬ 
ables the Judicial Department to receive jurisdiction to the full 
extent of the Constitution, laws, and treaties of the United States, 
when any question respecting them shall assume such a form that 
the judicial power is capable of acting on it. That power is capa¬ 
ble of acting only when the subject is submitted to it by a party 
who asserts his rights in the form prescribed by law. It then be¬ 
comes a case, and the Constitution declares that the judicial power 
shall extend to all cases arising under the Constitution, laws, and 
treaties of the United States. 

The suit of the Bank of the United States v. Osborn and others 
is a case, and the question is, whether it arises under a law of the 
United States. The appellants contend that it does not, because 
several questions may arise in it which depend on the general 
principles of the law, not on any act of Congress. If this were 
sufficient to withdraw a case from the jurisdiction of the federal 
courts, almost every case, although involving the construction of 
a law, would be withdrawn; and a clause in the Constitution re¬ 
lating to a subject of vital importance to the government, and ex¬ 
pressed in the most comprehensive terms, would be construed to 
mean almost nothing. There is scarcely any case every part of 
which depends on the Constitution, laws, or treaties of the United 
States. * * * 

In those cases in which original jurisdiction is given to the Su¬ 
preme Court, the judicial power of the United States cannot be 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§■ 89, 91, 94, 95. 



44 


FEDERAL JURISDICTION 


exercised in its appellate form. In every other case the power is 
to be exercised in its original or appellate form, or both, as the 
wisdom of Congress may direct. With the exception of these cases 
in which original jurisdiction is given to this court, there is none 
to which the judicial power extends, from which the original juris¬ 
diction of the inferior courts is excluded by the Constitution. Orig¬ 
inal jurisdiction, so far as the Constitution gives a rule, is coexten¬ 
sive with the judicial power. We find in the Constitution no pro¬ 
hibition to its exercise, in every case in which the judicial power 
can be exercised. It would be a very bold construction to say that 
this power could be applied in its appellate form only, to the most 
important class of cases to which it is applicable. 

The Constitution establishes the Supreme Court, and defines its 
jurisdiction. It enumerates cases in which its jurisdiction is orig¬ 
inal and exclusive; and then defines that which is appellate; but 
does not insinuate that, in any such case, the power cannot be ex¬ 
ercised in its original form by courts of original jurisdiction. It 
is not insinuated that the judicial power, in cases depending on 
the character of the cause, cannot be exercised in the first instance 
in the courts of the Union, but must first be exercised in the tri¬ 
bunals of the state; tribunals over which the government of the 
Union has no adequate control, and which may be closed to any 
claim asserted under a law of the United States. We perceive, 
then, no ground on which the proposition can be maintained, that 
Congress is incapable of giving the circuit courts original jurisdic¬ 
tion, in any case to which the appellate jurisdiction extends. 

We ask, then, if it can be sufficient to exclude this jurisdiction, 
that the case involves questions depending on general principles? 
A cause may depend on several questions of fact and law. Some of 
these may depend on the construction of a law of the United 
States; others on principles unconnected with that law. If it be 
a sufficient foundation for jurisdiction, that the title or right set up 
by the party, may be defeated by one construction of the Constitu¬ 
tion or law of the United States, and sustained by the opposite con¬ 
struction, provided the facts necessary to support the action be 
made out, then all the other questions must be decided as inci¬ 
dental to this, which gives that jurisdiction. Those other ques¬ 
tions cannot arrest the proceedings. Under this construction, the 
judicial power of the Union extends effectively and beneficially 
to that most important class of cases, which depend on the char¬ 
acter of the cause. On the opposite construction, the judicial power 
never can be extended to a whole case, as expressed by the Con¬ 
stitution, but to those parts of cases only which present the par¬ 
ticular question involving the construction of the Constitution or 
the law. We say, it never can be extended to the whole case, 
because, if the circumstance that other points are involved in it 
shall disable Congress from authorizing the courts of the Union 


FEDERAL JURISDICTION 


45 


to take jurisdiction of the original cause, it equally disables Con¬ 
gress from authorizing those courts to take jurisdiction of the 
whole cause, on an appeal, and thus will be restricted to a single 
question in that cause; and words obviously intended to secure to 
those who claim rights under the Constitution, laws, or treaties of 
the United States, a trial in the federal courts, will be restricted 
to the insecure remedy of an appeal upon an insulated point, after 
it has received that shape which may be given to it by another tri¬ 
bunal, into which he is forced against his will. 

We think, then, that when a question to which the judicial power 
of the Union is extended by the Constitution, forms an ingredient 
of the original cause, it is in the power of Congress to give the 
circuit courts jurisdiction of that cause, although other questions 
of fact or of law may be involved in it. 

The case of the bank is, we think, a very strong case of this de¬ 
scription, The charter of incorporation not only creates it, but gives 
it every faculty which it possesses. The power to acquire rights 
of any description, to transact business of any description, to make 
contracts of any description, to sue on those contracts, is given 
and measured by its charter, and that charter is a law of the United 
States. This being can acquire no right, make ho contract, bring 
no suit, which is not authorized by a law of the United States. It 
is not only itself the mere creature of a law, but all its actions and 
all its rights are dependent on the same law. Can a being, thus con- 
vStituted, have a case which does not arise literally, as well as sub¬ 
stantially, under the law? 

Take the case of a contract, which is put as the strongest against 
the bank. When a bank sues, the first question which presents 
itself, and which lies at the foundation of the cause, is, has this legal 
entity a right to sue? Has it a right to come, not into this court 
particularly, but into any court? This depends on a law of the 
United States. The next question is, has this being a right to make 
this particular contract? If this question be decided in the nega¬ 
tive, the cause is determined against the plaintiff; and this ques¬ 
tion, too, depends entirely on a law of the United States. These 
are important questions, and they exist in every possible case. The 
right to sue, if decided once, is decided forever; but the power 
of Congress was exercised antecedently to the first decision on 
that right, and, if it was constitutional then, it cannot cease to be 
so because the particular question is decided. It may be revived 
at the will of the party, and most probably would be renewed, 
were the tribunal to be changed. But the question respecting the 
right to make a particular contract, or to acquire a particular 
property, or to sue on account of a particular injury, belongs to 
every particular case, and may be renewed in every case. The 
question forms an original ingredient in every cause. Whether it 
be in fact relied on or not, in the defence, it is still a part of the 


46 


FEDERAL JURISDICTION 


cause, and may be relied on. The right of the plaintiff to sue 
cannot depend on the defence which the defendant may choose 
to set up. His right to sue is anterior to that defence, and must 
depend on the state of things when the action is brought. The 
questions which the case involves, then, must determine its char¬ 
acter, whether those questions be made in the cause or not. ^ ^ 

The clause giving the bank a right to sue in the circuit courts 
of the United States stands on the same principle with the acts 
authorizing officers of the United States who sue in their own 
names, to sue in the courts of the United States. The Postmaster- 
General, for example, cannot sue under that part of the Consti¬ 
tution which gives jurisdiction to the federal courts in consequence 
of the character of the party, nor is he authorized to sue by the 
Judiciary Act (1 Stat. 73). He comes into the courts of the Union 
under the authority of an act of Congress, the constitutionality of 
which can only be sustained by the admission that his suit is a 
case arising under a law of the United States. If it be said that it 
is. such a case, because a law of the United States authorizes the 
contract and authorizes the suit, the same reasons exist with re¬ 
spect to a suit brought by the bank. That, too, is such a case; 
because that suit, too, is itself authorized, and is brought on a con¬ 
tract authorized by a law of the United States. It depends abso¬ 
lutely on that law, and cannot exist a moment without its au¬ 
thority. 

If it be said that a suit brought by the bank may depend in fact 
altogether on questions unconnected with any law of the United 
States, it is equally true, with respect to suits brought by the Post¬ 
master-General. The plea in bar may be payment, if the suit be 
brought on a bond, or non assumpsit, if it be brought on an open 
account, and no other question may arise than what respects the 
complete discharge of the demand. Yet the constitutionality of the 
act authorizing the Postmaster-General to sue in the courts of the 
United States has never been drawn into question. It is sustained 
singly by an act of Congress, standing bn that construction of the 
Constitution which asserts the right of the legislature to give orig¬ 
inal jurisdiction to the circuit courts, in cases arising under a law of 
the United States. 

The clause (1 Stat. 322), in the patent law, authorizing suits in 
the circuit courts, stands, we think, on the same principle. Such 
a suit is a case arising under a law of the United States. Yet the 
defendant may not, at the trial, question the validity of the patent, 
or make any point which requires the construction of an act of 
Congress. He may rest his defence exclusively on the fact that 
he has not violated the right of the plaintiff. That this fact be¬ 
comes the sole question made in the cause cannot oust the juris¬ 
diction of the court, or establish the position, that the case does 
not arise under a law of the United States. 


FEDERAL JURISDICTION 


47 


It is said that a clear distinction exists between the party and 
the cause; that the party may originate under a law with which the 
cause has no connection; and that Congress may, with the same 
propriety, give a naturalized citizen, who is the mere creature of 
a law, a right to sue in the courts of the United States, as give 
that right to the bank. This distinction is not denied; and if the 
act of Congress was a simple act of incorporation, and contained 
nothing more, it might be entitled to great consideration. But 
the act does not stop with incorporating the bank. It proceeds to 
bestow upon the being it has made, all the faculties and capacities 
which that being possesses. Every act of the bank grows out of 
this law, and is tested by it. To use the language of the Consti¬ 
tution, every act of the bank arises out of this law. 

A naturalized citizen is, indeed, made a citizen under an act of 
Congress, but the act does not proceed to give, to regulate, or to 
prescribe his capacities. He becomes a member of the society, 
possessing all the rights of a native citizen, and standing, in the 
view of the Constitution, on the footing of a native. The Consti¬ 
tution does not authorize Congress to enlarge or abridge those 
rights. * * * There is, then, no resemblance between the act 

incorporating the bank and the general naturalization law (2 Stat. 
153). * * * 

Decree affirmed. 

[Johnson, J., gave a dissenting opinion.] 


HANS V. LOUISIANA. 

(Supreme Court of United States, 1890. 134 U. S. 1, 10 Sup. Ct. 504, 33 L. 

Ed. 842.) 

[Error to the federal Circuit Court for the Eastern District of 
Louisiana. In 1874 Louisiana issued certain bonds, and by con¬ 
stitutional amendment pledged the proceeds of a certain special 
tax for their payment. In 1879 the new state constitution re¬ 
pudiated these obligations and forbade state officers to fulfill 
them. Hans, a citizen of Louisiana, sued the state in the above 
federal court to recover the interest due upon some of said bonds 
held by him, alleging that said provisions of the new constitution 
violated the federal Constitution by impairing the obligation of 
these bond contracts. The state denied the court’s jurisdiction 
and the suit was dismissed.] 

Mr. Justice Bradley. ^ * The question is presented wheth¬ 

er a state can be sued in a circuit court of the United States by 
one of its own citizens upon a suggestion that the case is one that 
arises under the Constitution or laws of the United States. 

The ground taken is that under the Constitution, as well as un¬ 
der the act of Congress passed to carry it into effect, a case is. 



48 


FEDERAL JURISDICTION 


within the jurisdiction of the federal courts, without regard to the 
character of the parties, if it arises under the Constitution or laws 
of the United States, or, which is the same thing, if it necessarily 
involves a question under said Constitution or laws. The lan¬ 
guage relied on is that clause of the third article of the Constitu¬ 
tion, which declares that “the judicial power of the United States 
shall extend to all cases in law and equity arising under this Con¬ 
stitution, the laws of the United States, and treaties made, or 
which shall be made, under their authority;” and the correspond¬ 
ing clause of the act conferring jurisdiction upon the circuit court, 
which, as found in the act of March 3, 1875, is as follows, to wit: 
“That the circuit courts of the United States shall have original 
cognizance, concurrent with the courts of the several states, of 
all suits of a civil nature, at common law or in equity, * * * 

arising under the Constitution or laws of the United States, or 
treaties made, or which shall be made, under their authority.” 

It is said that these jurisdictional clauses make no exception 
arising from the character of the parties, and therefore that a state 
can claim no exemption from suit, if the case is really one arising 
under the Constitution, laws, or treaties of the United States. It 
is conceded that, where the jurisdiction depends alone upon the 
character of the parties, a controversy between a state and its own 
citizens is not embraced within it; but it is contended that, 
though jurisdiction does not exist on that ground, it nevertheless 
does exist if the case itself is one which necessarily involves a fed¬ 
eral question; and, with regard to ordinary partieSj this is un¬ 
doubtedly true. The question now to be decided is whether it is 
true where one of the parties is a state, and is sued as a defendant 
by one of its own citizens. 

That a state cannot be sued by a citizen of another state, or of 
a foreign state, on the mere ground that the case is one arising 
under the Constitution or laws of the United States, is clearly es¬ 
tablished by the decisions of this court in several recent cases. 
Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128, 27 L. Ed. 448; 
Hagood V. Southern, 117 U. S. 52, 6 Sup. Ct. 608, 29 L. Ed. 805; 
In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. Ed. 216. * * * 
This court held that the suits were virtually against the states 
themselves, and were consequently violative of the eleventh 
amendment of the Constitution, and could not be maintained. It 
was not denied that they presented cases arising under the Con¬ 
stitution; but, notwithstanding that, they were held to be pro¬ 
hibited by the amendment referred to. 

In the present case the plaintiff in error contends that he, being 
a citizen of Louisiana, is not embarrassed by the obstacle of the 
eleventh amendment, inasmuch as that amendment only prohibits 
suits against a state which are brought by the citizens of another 


FEDERAL JURISDICTION 


49 


state, or by citizens or subjects of a foreign state. It is true the 
amendment does so read, and, if there were no other reason or 
ground for abating his suit, it might be maintainable; and then we 
should have this anomalous result, that, in cases arising under 
the Constitution or laws of the United States, a state may be sued 
in the federal courts by its own citizens, though it cannot be sued 
for a like cause of action by the citizens of other states, or of a 
foreign state; and may be thus sued in the federal courts, al¬ 
though not allowing itself to be sued in its own courts. If this 
is the necessary consequence of the language of the Constitution 
and the law, the result is no less startling and unexpected than 
was the original decision of this court, that, under the language 
of the Constitution and of the judiciary act of 1789, a state was 
liable to be sued by a citizen of another state or of a foreign coun¬ 
try. That decision was made in the case of Chisholm v. Georgia, 
2 Dali. 419, 1 L. Ed. 440, and created such a shock of surprise 
throughout the country that, at the first meeting of Congress 
thereafter, the eleventh amendment to the Constitution was almost 
unanimously proposed, and was in due course adopted by the leg¬ 
islatures of the states. 

This amendment, expressing the will of the ultimate sovereignty 
of the whole country, superior to all legislatures and all courts, 
actually reversed the decision of the supreme court. It did not in 
terms prohibit suits by individuals against the states, but declared 
that the Constitution should not be construed to import any pow¬ 
er to authorize the bringing of such suits. The language of the 
amendment is that ‘‘the judicial power of the United States shall 
not be construed to extend to any suit, in law or equity, com¬ 
menced or prosecuted against one of the United States by citizens 
of another state, or by citizens or subjects of any foreign state. 
The supreme court had construed the judicial power as extending 
to such a suit, and its decision was thus overruled. The court it¬ 
self so understood the effect of the amendment, for after its adop¬ 
tion Attorney General Lee, in the case of Hollingsworth v. Vir¬ 
ginia (3 Dali. 378, 1 L. Ed. 644), submitted this question to the 
court, “whether the amendment did or did not supersede all suits 
depending, as well as prevent the institution of new suits, against 
any one of the United States, by citizens of another state.” Tilgh- 
man and Rawle argued in the negative, contending that the juris¬ 
diction of the court was unimpaired in relation to all suits insti¬ 
tuted previously to the adoption of the amendment. But on the 
succeeding day, the court delivered an unanimous opinion “that, 
the amendment being constitutionally adopted, there could not be 
exercised any jurisdiction, in any case, past or future, in which a 
state was sued by the citizens of another state, or by citizens or 
subjects of any foreign state.” 

Hall Cases Const.L.—4 


50 


FEDERAL JURISDICTION 


This view of the force and meaning of the amendment is im¬ 
portant. It shows that, on this question of the suability of the 
states by individuals, the highest authority of this country was iti 
accord rather with the minority than with the majority of the 
court in the decision of the case of Chisholm v. Georgia; and this 
fact lends additional interest to the able opinion of Mr. Justice 
Iredell on that occasion. * * * [He] contended that it was 

not the intention to create new and unheard of remedies, by sub¬ 
jecting sovereign states to actions at the suit of individuals (which 
he conclusively showed was never done before), but only, by 
proper legislation, to invest the federal courts with jurisdiction to 
hear and determine controversies and cases, between the parties 
designated, that were properly susceptible of litigation in courts. 

Looking back from our present stand-point at the decision in 
Chisholm v. Georgia, we do not greatly wonder at the effect which 
it had upon the country. Any such power as that of authorizing 
the federal judiciary to entertain suits by individuals against the 
states had been expressly disclaimed, and even resented, by the 
great defenders of the Constitution while it was on its trial before 
the American people. As some of their utterances are directly 
pertinent to the question now under consideration, we deem it 
proper to quote them. * * * [Here follow quotations to this 

effect from Hamilton in the Federalist, No. 81, and from Madison 
and Marshall in the Virginia convention of ratification; 3 Ell. 
Deb. 533, 555.] 

It seems to us that these views of those great advocates and de¬ 
fenders of the Constitution were most sensible and just, and they 
apply equally to the present case as to that then under discussion. 

The letter is appealed to now, as it was then, as a ground for 
sustaining a suit brought by an individual against a state. The 
reason against it is as strong in this case as it was in that. It is 
an attempt to strain the Constitution and the law to a construc¬ 
tion never imagined or dreamed of. Can we suppose that, when 
the eleventh amendment was adopted, it was understood to be left 
open for citizens of a state to sue their own state in the federal 
courts, while the idea of suits by citizens of other states, or of 
foreign states, was indignantly repelled? Suppose that Congress, 
when proposing the eleventh amendment, had appended to it a 
proviso that nothing therein contained should prevent a state from 
being sued by its own citizens in cases arising under the Constitu¬ 
tion or laws of the United States, can we imagine that it would 
have been adopted by the states? The supposition that it would 
is almost an absurdity on its face. 

The truth is that the cognizance of suits and actions unknown 
to the law, and forbidden by the law, was not contemplated by the 
Constitution when establishing the judicial power of the United 


FEDERAL JURISDICTION 


51 


States. Some things, undoubtedly, were made justifiable which 
were not known as such at the common law; such, for example, 
as controversies between states as to boundary lines, and other 
questions admitting of judicial solution. * * jk Qf other con¬ 

troversies between a state and another state or its citizens, which, 
on the settled principles of public law, are not subjects of judicial 
cognizance, this court has often declined to take jurisdiction. See 
Wisconsin v. Insurance Co., 127 U. S. 265, 288, 289, 8 Sup. Ct. 
1370, 32 L. Ed. 239, and cases there cited. 

The suability of a state, without its consent, was a thing un¬ 
known to the law. This has been so often laid down and acknowl¬ 
edged by courts and jurists that it is hardly necessary to be for¬ 
mally asserted. It was fully shown by an exhaustive examination 
of the old law by Mr. Justice Iredell in his opinion in Chisholm v. 
Georgia; and it has been conceded in every case since, where 
the question has, in any way, been presented. * * * 

[After referring to various authorities to this effect:] “It may 
be accepted as a point of departure unquestioned,’^ said Mr. Jus¬ 
tice Miller in Cunningham v. Railroad Co., 109 U. S. 446, 451, 3 
Sup. Ct. 292, 609, 27 E. Ed. 992, “that neither a state nor the 
United States can be sued as defendant in any court in this coun¬ 
try without their consent, except in the limited class of cases in 
which a state may be made a party in the supreme court of the 
United States by virtue of the original jurisdiction conferred on 
this court by the Constitution.” 

Undoubtedly a state may be sued by its own consent, as was 
the case in Curran v. Arkansas, 15 How. 304, 309, 14 E. Ed. 705, 
and in Clark v. Barnard, 108 U. S. 436, 447, 2 Sup. Ct. 878, 27 E. 
Ed. 780. The suit in the former case was prosecuted by virtue 
of a state law which the legislature passed in conformity to the 
Constitution of that state. But this court decided, in Beers v. 
Arkansas, 20 How. 527, 15 E. Ed. 991, that the state could repeal 
that law at any time; that it was not a contract within the terms 
of the Constitution prohibiting the passage of state laws impairing 
the obligation of a contract. ^ ^ 

To avoid misapprehension, it may be proper to add that, al¬ 
though the obligations of a state rest for their performance upon 
its honor and good faith, and cannot be made the subjects of ju¬ 
dicial cognizance unless the state consents to be sued or comes 
itself into court, yet, where property or rights are enjoyed under 
a grant or contract made by a state, they cannot wantonly be in¬ 
vaded. While the state cannot be compelled by suit to perform 
its contracts, any attempt on its part to violate property or rights 
acquired under its contracts may be judicially resisted, and any 
law impairing the obligation of contracts under which such prop¬ 
erty or rights are held is void and powerless to affect their enjoy¬ 
ment. 


FEDERAL JURISDICTION 


52 


It is not necessary that we should enter upon an examination of 
the reason or expediency of the rule which exempts a sovereign 
state from prosecution in a court of justice at the suit of individ¬ 
uals. This is fully discussed by writers on public law. It is 
enough for us to declare its existence. The legislative department 
of a state represents its polity and its will, and is called upon by 
the highest demands of natural and political law to preserve jus¬ 
tice and judgment, and to hold inviolate the public obligations. 
Any departure from this rule, except for reasons most cogent, (of 
which the legislature, and not the courts, is the judge,) never fails 
in the end to incur the odium of the world, and to bring lasting 
injury upon the state itself. But to deprive the legislature of the 
power of judging what the honor and safety of the state may re¬ 
quire, even at the expense of a temporary failure to discharge the 
public debts, would be attended with greater evils than such fail¬ 
ure can cause. 

Judgment affirmed.^ 

[Harlan, J., concurred in the result, dissenting as to the dis¬ 
approval of Chisholm v. Georgia.] 

2 In Kawananakoa v. Polyblank, 205 U. S. 349, 353, 354, 27 Sup. Ct. 526, 51 
L. Ed, 834 (1907) the territory of Hawaii, upon which Congress had conferred 
general legislative powers in local matters, was held not subject to private 
suit without its consent. Holmes, J., saying: 

“A sovereign is exempt from suit, not because of any formal conception 
of obsolete theory, but on the logical and practical ground that there can be 
no legal right as against the authority that makes the law on which the 
right depends. * * * As the ground is thus logical and practical, the doc¬ 

trine is not confined to powers that are sovereign in the full sense of juridical 
theory, but naturally is extended to those that, in actual administration, orig¬ 
inate and change at their will the law of contract and property, from which 
persons within the jurisdiction derive their rights. A suit presupposes that 
the defendants are subject to the law invoked. Of course it cannot be main¬ 
tained unless they are so. But that is not the case with a territory of the 
United States, because the territory itself is the fountain from which rights or¬ 
dinarily fiow. It is true that Congress might intervene, just as, in the case of 
a state, the Constitution does, and the power that can alter the Constitution 
might. But the rights that exist are not created by Congress or the Constitu¬ 
tion, except to the extent of certain limitations of power. The District of 
Columbia is different, because there the body of private rights is created and 
controlled by Congress, and not by a legislature of the District. [Metropol. 
Ry. V. Dist. Col., 132 U. S. 1, 10 Sup. Ct. 19, 33 L. Ed. 231 (1889).]” 

The same has been held regarding Porto Rico. Porto Rico v. Rosaly y 
Castillo, 227 U. S. 270, 33 Sup. Ct. 352, 57 L. Ed. 507 (1913). 


FEDERAL JURISDICTION 


63 


In re AYERS. 

(Supreme Court of United States, 1887. 123 U. S. 443, 8 Sup. Ct. 164, 31 L. 

Ed. 216.) 

[Petitions for habeas corpus. Virginia issued bonds in 1871 and 
1879 bearing negotiable interest coupons which the state contracted 
should be received at par in payment of taxes. After the failure 
of one attempt by the state to repudiate these obligations, Cooper 
and others, British aliens, bought $100,000 par value of said cou¬ 
pons for $30,000, to sell them to Virginia tax payers. In 1887 a 
Virginia statute forbade the acceptance of these coupons for taxes 
until their genuineness had been established in a suit for taxes 
]?rought against each person who tendered them in payment thereof, 
and the state’s attorneys were ordered to bring such suits against 
those who tendered said coupons. Said aliens filed a bill in the 
federal Circuit Court for the Eastern District of Virginia and ob¬ 
tained an injunction against the bringing of such suits by said of¬ 
ficers under this statute. Ayers, the attorney-general, and others, 
disobeyed this order, and were taken into custody for contempt, for 
discharge from which they obtained this writ, alleging the (Circuit 
Court’s want of jurisdiction for its order under the eleventh amend¬ 
ment.] 

Mr. Justice Matthews. ^ ^ must be regarded as the 

settled doctrine of this court, established by its recent decisions, 
“that the question whether a suit is within the prohibition of the 
eleventh amendment is not always determined by reference to the 
nominal parties on the record.” Poindexter v. Greenhow, 114 U. 

5. 270, 287, 5 Sup. Ct. 903, 962, 29 L. Ed. 182. * * * [After 

discussing various cases:] It is therefore not conclusive of the 
principal question in this case that the state of Virginia is not 
named as a party defendant. Whether it is the actual party, in 
the sense of the prohibition of the Constitution, must be determined 
by a consideration of the nature of the case as presented on the 
whole record. * * * 

It is to be observed that the only personal act on the part of the 
petitioners sought to be restrained by the original order of June 

6, 1887, in pursuance of the prayer of the bill, is the bringing of 

any suit under the act of May 12, 1887, against any person who had 
tendered tax-receivable coupons in payment of taxes due to the 
state of Virginia. Any such suit must, by the statute, be brought 
in the name of the state and for its use. * * * [Here follow 

arguments tending to deny the right of coupon-holders to be free 
from suit for taxes, provided the tender of the coupons was pre¬ 
served as a defence, and questioning the right of complainants in 
the injunction suit legally to object to the bringing of such tax 
suits against their assignees of coupons.] 


54 


FEDERAL JURISDICTION 


The substance of the bill ^ ^ does not allege any grounds 

of equitable relief against the individual defendants for any per¬ 
sonal wrong committed or threatened by them. It does not charge 
against them in their individual character anything done or threat¬ 
ened which constitutes, in contemplation of law, a violation of 
personal or property rights, or a breach of contract to which they 
are parties. The relief sought is against the defendants, not in 
their individual but in their representative capacity, as officers of 
the state of Virginia. The acts sought to be restrained are the 
bringing of suits by the state of Virginia in its own name, and for 
its own use. If the state had been made a defendant to this bill by 
name, * * * [and] if a decree could have been rendered en¬ 

joining the state from bringing suits against its taxpayers, it would 
have operated upon the state only through the officers who by law 
were required to represent it in bringing such suits, viz., the pres¬ 
ent defendants, its attorney general, and the commonwealth’s at¬ 
torneys for the several counties. For a breach of such an injunc¬ 
tion, these officers would be amenable to the court as proceeding 
in contempt of its authority, and would be liable to punishment 
therefor by attachment and imprisonment. 

The nature of the case, as supposed, is identical with that of the 
case as actually presented in the bill, with the single exception 
that the state is not named as a defendant. How else can the state 
be forbidden by judicial process to bring actions in its name, except 
by constraining the conduct of its officers, its attorneys, and its 
agents? And if all such officers, attorneys, and agents are person¬ 
ally subjected to the process of the court, so as to forbid their act¬ 
ing in its behalf, how can it be said that the state itself is not sub¬ 
jected to the jurisdiction of the court as an actual and real de¬ 
fendant? * * * 

The principal authority relied upon to maintain this proposition 
is the judgment of this court in the case of Osborn v. Bank, 9 
Wheat. 738, 6 L. Ed. 204. * * * But the act of the legislature 
of Ohio, declared to be unconstitutional and void in that case, had 
for its sole purpose the levy and collection of an annual tax of 
$50,000 upon each office of discount and deposit of the bank of 
the United States within that state, to be collected, in case of re¬ 
fusal to pay, by the auditor of state by a levy upon the money, 
bank-notes, or other goods and chattels, the property of the bank; 
to seize which it was made lawful, under the warrant of the audi¬ 
tor, for the person to whom it was directed to enter the bank for 
the purpose of finding and seizing property to satisfy the same. 
The wrong complained of and sought to be prevented by the in¬ 
junction prayed for was this threatened seizure of the property of 
the bank. An actual seizure thereof, in violation of the injunction, 
was treated as a contempt of the court, for which the parties were 


FEDERAL JURISDICTION 


55 


attached, and the final decree of the circuit court restored the prop¬ 
erty taken to the possession of the complainant.® * * * 

The very ground on which it was adjudged not to be a suit 
against the state, and not to be one in which the state was a neces¬ 
sary party, was that the defendants personally and individually 
were wrong-doers, against whom the complainants had a clear 
right of action for the recovery of the property taken, or its value, 
and that, therefore, it was a case in which no other parties were 
necessary. The right asserted and the relief asked were against 
the defendants as individuals. They sought to protect themselves 
against personal liability by their official character as representa¬ 
tives of the state. This they were not permitted to do, because 
the authority under which they professed to act was void. * * 

The vital principle in all such cases is that the defendants, though 
professing to act as officers of the state, are threatening a viola¬ 
tion of the personal or property rights of the complainant, for 
which they are personally and individually liable. * * * 

[After quoting from Poindexter v. Greenhow, 114 U. S. 270, 282, 
288, 5 Sup. Ct. 903, 29 L. Ed. 185 :] This principle is illustrated and 
enforced by the case of U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 
27 L. Ed. 171.* In that case the plaintiffs had been wrongfully 
dispossessed of their real estate by defendants claiming to act 
under the authority of the United States. That authority could 
exist only as it was conferred by law, and as they were unable to 
show any lawful authority under the United States it was held 
that there was nothing to prevent the judgment of the court against 
them as individuals, for their individual wrong and trespass. This 
feature will be found, on an examination, to characterize every case 
where persons have been made defendants for acts done or threat¬ 
ened by them as officers of the government, either of a state or 
of the United States, where the objection has been interposed that 
the state was the real defendant, and has been overruled. The 
action has been sustained only in those instances where the act 
complained of, considered apart from the official authority alleged 
as its justification, and as the personal act of the individual defend- 

3 In this case Marshall, G. J., said (9 Wheat, at pages 842, 843 [6 L. Ed. 204]): 
“The objection is that, as the real party cannot be brought before the court, a 
suit cannot be sustained against the agents of that party; and cases have 
been cited to show that a court of chancery will not make a decree unless all 
those who are substantially interested be made parties to the suit. This is 
certainly true where it is in the power of the plaintiff to make them parties, 
but if the person who is the real principal, the person who is the true source 
of the mischief, by whose power and for whose advantage it is done, be him¬ 
self above the law, be exempt from all judicial process, it would be subversive 
of the best established principles to say that the laws could not afford the 
same remedies against the agent employed in doing the wrong which they 
would afford against him could his principal be joined in the suit. It is ad¬ 
mitted that the privilege of the principal is not communicated to the agent.” 

4 The leading case, the land being actually in use, under orders of the Presi¬ 
dent, as a federal fort and cemetery. 


56 


FEDERAL JURISDICTION 


ant, constituted a violation of right for which the plaintif? was 
entitled to a remedy at law or in equity against the wrongdoer in 
his individual character. 

The present case stands upon a footing altogether different. Ad¬ 
mitting all that is claimed on the part of the complainants as to 
the breach of its contract on the part of the state of Virginia by 
the acts of its general assembly referred to in the bill of complaint, 
there is nevertheless no foundation in law for the relief asked. 
For a breach of its contract by the state, it is conceded there is 
no remedy by suit against the state itself. This results from the 
eleventh amendment to the Constitution, which secures to the state 
immunity from suit by individual citizens of other states or aliens. 
This immunity includes not only direct actions for damages for 
the breach of the contract brought against the state by name, but 
all other actions and suits against it, whether at law or in equity. 
A bill in equity for the specific performance of the contract against 
the state by name, it is admitted could not be brought. In Hagood 
V. Southern, 117 U. S. 52, 6 Sup. Ct. 608, 29 Sup. Ct. 805, it was 
decided that in such a bill, where the state was not nominally 
a party to the record, brought against its officers and agents, having 
no personal interest in the subject-matter of the suit, and defend¬ 
ing only as representing the state, where “the things required by the 
decree to be done and performed by them are the very things which, 
when done and performed, constitute a performance of the alleged 
contract by the state,’" the court was without jurisdiction, because 
it was a suit against a state. 

The converse of that proposition must be equally true, because 
it is contained in it; that is, a bill, the object of which is by in¬ 
junction, indirectly, to compel the specific performance of the con¬ 
tract, by forbidding all those acts and doings which constitute 
breaches of the contract, must also, necessarily, be a suit against 
the state. In such a case, though the state be not nominally a 
party on the record, if the defendants are its officers and agents, 
through whom alone it can act in doing and refusing to do the 
things which constitute a breach of its contract, the suit is still, in 
substance, though not in form, a suit against the state. * ^ * 

It may be asked what is the true ground of distinction, so far 
as the protection of the Constitution of the United States is in¬ 
voked, between the contract rights of the complainant in such a 
suit, and other rights of person and of property. In these latter 
cases it is said that jurisdiction may be exercised against individual 
defendants, notwithstanding the official character of their acts, 
while in cases of the former description the jurisdiction is denied. 

The distinction, however, is obvious. The acts alleged in the bill 
a.s threatened by the defendants, the present petitioners, are viola¬ 
tions of the assumed contract between the state of Virginia and 


FEDERAL JURISDICTION 


57 


the complainants, only as they are considered to be the acts of the 
state of Virginia. The defendants, as individuals, not being parties 
to that contract, are not capable in law of committing a breach 
of it. There is no remedy for a breach of a contract, actual or ap¬ 
prehended, except upon the contract itself, and between those who 
are by law parties to it. * * * But where the contract is be¬ 

tween the individual and the state, no action will lie against the 
state, and any action founded upon it against defendants who are 
officers of the state, the object of which is to enforce its specific 
performance by compelling those things to be done by the defend¬ 
ants which, when done, would constitute a performance by the state, 
or to forbid the doing of those things which, if done, would be 
merely breaches of the contract by the state, is in substance a suit 
against the state itself, and equally within the prohibition of the 
Constitution. 

It cannot be doubted that the eleventh amendment to the Con¬ 
stitution operates to create an important distinction between con¬ 
tracts of a state with individuals and contracts between individual 
parties. In the case of contracts between individuals, the reme¬ 
dies for their enforcement or breach, in existence at the time they 
were entered into, are a part of the agreement itself, and constitute 
a substantial part of its obligation. * * * It is different with 

contracts between individuals and a state. In respect to these, by 
virtue of the eleventh amendment to the Constitution, there being 
no remedy by a suit against the state, the contract is substantially 
without sanction, except that which arises out of the honor and 
good faith of the state itself, and these are not subject to coer¬ 
cion. * * 

The very object and purpose of the eleventh amendment were 
to prevent the indignity of subjecting a state to the coercive pro¬ 
cess of judicial tribunals at the instance of private parties. It was 
thought to be neither becoming nor convenient that the several 
states of the Union, invested with that large residuum of sover¬ 
eignty which had not been delegated to the United States, should 
be summoned as defendants to answer the complaints of private 
persons, whether citizens of other states or aliens, or that the course 
of their public policy and the administration of their public affairs 
should be subject to and controlled by the mandates of judicial 
tribunals, without their consent, and in favor of individual inter¬ 
ests. To secure the manifest purposes of the constitutional exemp¬ 
tion guarantied by the eleventh amendment, requires that it should 
be interpreted, not literally and too narrowly, but fairly, and with 
such breadth and largeness as effectually to accomplish the sub¬ 
stance of its purpose. In this spirit it must be held to cover, not 
only suits brought against a state by name, but those also against 
its officers, agents, and representatives, where the state, though not 
named as such, is, nevertheless, the only real party against which 


58 


FEDERAL JURISDICTION 


alone in fact the relief is asked, and against which the judgment or 
decree effectively operates. 

But this is not intended in any way to impinge upon the principle 
which justifies suits against individual defendants, who, under color 
of the authority of unconstitutional legislation by the state, are 
guilty of personal trespasses and wrongs, nor to forbid suits against 
officers in their official capacity either to arrest or direct their of¬ 
ficial action by injunction or mandamus, where such suits are au¬ 
thorized by law, and the act to be done or omitted is purely minis¬ 
terial, in the performance or omission of which the plaintiff has 
a legal interest. * * * 

Nor need it be apprehended that the construction of the eleventh 
amendment, applied in this case, will in anywise embarrass or ob¬ 
struct the execution of the laws of the United States, in cases where 
officers of a state are guilty of acting in violation of them under 
color of its authority. The government of the United States, in 
the enforcement of its laws, deals with all persons within its terri¬ 
torial jurisdiction as individuals owing obedience to its authority. 
The penalties of disobedience may be visited upon them without 
regard to the character in which they assume to act, or the nature 
of the exemption they may plead in justification. Nothing can be 
interposed between the individual and the obligation he owes to 
the Constitution and laws of the United States, which can shield 
or defend him from their just authority, and the extent and limits 
of that authority the government of the United States, by means 
of its judicial power, interprets and applies for itself. If, there¬ 
fore, an individual, acting under the assumed authority of a state, 
as one of its officers, and under color of its laws, comes into conflict 
with the superior authority of a valid law of the United States, 
he is stripped of his representative character, and subjected in his 
person to the consequences of his individual conduct. The state 
has no power to impart to him any immunity from responsibility 
to the supreme authority of the United States. * h? ♦ 

Petitioners discharged.® 

[FiUld, J., gave a concurring opinion, and Harlan, J., a dissent¬ 
ing one.] 

5 In Pennoyer v. McGonnaugliy, 140 U. S. 1, 16-18, 11 Sup. Ct. 699, 35 L. 
Ed. 363 (1891) an Oregon statute had illegally revoked a contract with the 
state under which plaintiff acquired rights in certain land, and plaintiff se¬ 
cured an injunction against the resale of said land by the state land commis¬ 
sioners, including the governor. Lamar, J., said: 

“The dividing line between the cases [permitting suits against state of¬ 
ficers] and the class of cases in which it has been held that the state is a party 
defendant, and therefore not suable, by virtue of the inhibition contained in 
the eleventh amendment to the Constitution, was adverted to in Cunningham 
V. Railroad Co., where it was said, referring to the case of Davis v. Gray [16 
Wall. 203, 21 L. Ed. 447 (1873)]: ‘Nor was there in that case any aflirmative 
relief granted by ordering the governor and land commissioner to perform 
any act towards perfecting the title of the company.’ 109 U. S. 453, 454, 3 
Sup. Ct. 298, 609, 27 L. Ed. 992 (1883). Thus holding, by implication, at least, 


FEDERAL JURISDICTION 


69 


KANSAS V. COLORADO. 

(Supreme Court of United States, 1902. 185 U. S. 125, 22 Sup. Ct. 552, 46 

L. Ed. 838.) 

[Original bill of complaint by Kansas against Colorado, alleging 
in substance a large diversion of the waters of the Arkansas river 
as it flowed through Colorado, made by or under the authority of 
that state for purposes of irrigation, which so diminished the flow 
of the river below in Kansas as greatly to injure the owners of 
riparian land, of which Kansas itself owned two small parcels used 
by it for a soldiers’ home and a reformatory. An injunction was 
prayed against any further diversion of said river in Colorado by 
that state, and against the granting of any further authority by 
Colorado to private persons to divert said water, except for do¬ 
mestic use. Demurrer, upon the ground, among others, that the 
matters alleged showed no controversy between states within the 
meaning of the Constitution.] 

Mr. Chief Justice Fuller. * * ♦ gy ^he 1st clause of § 10 
of article 1 of the Constitution it was provided that “no state shall 
enter into any treaty, alliance, or confederation;” and by the 3d 
clause that “no state shall, without the consent of the Congress, 
* * * keep troops or ships of war in time of peace, enter into 

any agreement or compact with another state, or with a foreign 
power, or engage in war, unless actually invaded, or in such immi¬ 
nent danger as will not admit of delay.” * * * 

Undoubtedly, as remarked by Mr. Justice Bradley in Hans v. 
Louisiana, 134 U. S. 1, 15, 33 L. Ed. 842, 847, 10 Sup. Ct. 504, 507, 

that affirmative relief would not be granted against a state officer, by order¬ 
ing him to do and perform acts forbidden by the law of this state, even though 
such law might be unconstitutional. The same distinction was pointed out 
in Hagood v. Southern, which was held to be, in effect, a suit against the 
state, and it was said: ‘A broad line of demarkation separates from such 
cases as the present, in which the decrees require, by affirmative official ac¬ 
tion on the part of the defendants, the performance of an obligation which 
belongs to the state in its political capacity, those in which actions at law or 
suits in equity are maintained against defendants who, while claiming to act 
as officers of the state, violate and invade the personal and property rights 
of the plaintiffs, under color of authority unconstitutional and void.’ 117 U. 
S. 52, 70, 6 Sup. Ct. 616, 29 L. Ed. 805 (1886). * * * 

“This suit is not nominally against the governor, secretary of state, and 
treasurer as such officers, but against them collectively, as the board of land 
commissioners. It must also be observed that the plaintiff is not seeking any 
affirmative relief against the state or any of its officers. He is not asking 
that the state be compelled to issue patents to him for the land he claims to 
have purchased, nor is he seeking to compel the defendants to do and per¬ 
form any acts in connection with the subject-matter of the controversy requi¬ 
site to complete his title. All that he asks is that the defendants may be 
restrained and enjoined from doing certain acts which he alleges are viola¬ 
tive of his contract made with the state when he purchased his lands. He 
merely asks that an injunction may issue against them to restrain them from 
acting under a statute of the state alleged to be unconstitutional, which acts 
will be destructive of his rights and privileges, and will work irreparable dam¬ 
age and mischief to his property rights.” 


60 


FEDERAL JURISDICTION 


the Constitution made some things justiciable *Vhich were not 
known as such at the common law—such, for example, as contro¬ 
versies between states as to boundary lines and other questions ad¬ 
mitting of judicial solution/’ And as the remedies resorted to by 
independent states for the determination of controversies raised 
by collision between them were withdrawn from the states by the 
Constitution, a wide range of matters, susceptible of adjustment, 
and not purely political in their nature, was made justiciable by 
that instrument. 

In Missouri v. Illinois, 180 U. S. 208, 45 L. Ed. 497, 21 Sup. Ct. 
331, it was alleged that an artificial channel or drain constructed 
by the sanitary district for purposes of sewerage, under authority 
derived from the state of Illinois, created a continuing nuisance 
dangerous to the health of the people of the state of Missouri; and 
the bill charged that the acts of defendants, if not restrained, would 
result in poisoning the water supply of the inhabitants of Mis¬ 
souri, and in injuriously affecting that portion of the bed of the 
Mississippi river lying within its territory. In disposing of a demur¬ 
rer to the bill, numerous cases involving the exercise of original 
jurisdiction by this court were examined; and the court, speaking 
through Mr. Justice Shiras, said: 

“The cases cited show that such jurisdiction has been exercised 
in cases involving boundaries and jurisdiction over lands and their 
inhabitants, and in cases directly affecting the property rights and 
interests of a state. But such cases manifestly do not cover the 
entire field in which such controversies may arise, and for which 
the Constitution has provided a remedy; and it would be objection¬ 
able and, indeed, impossible, for the court to anticipate by defini¬ 
tion what controversies can and what cannot be brought within the 
original jurisdiction of this court. An inspection of the bill dis¬ 
closes that the nature of the injury complained of is such that an 
adequate remedy can only be found in this court at the suit of 
the state of Missouri. It is true that no question of boundary is 
involved, nor of direct property rights belonging to the complain¬ 
ant state, but it must surely be conceded that if the health and com¬ 
fort of the inhabitants of a state are threatened, the state is the 
proper party to represent and defend them. If Missouri were an 
independent and sovereign state, all must admit that she could seek 
a remedy by negotiation, and, that failing, by force. Diplomatic 
powers and the right to make war having been surrendered to 
the general government, it was to be expected that upon the latter 
would be devolved the duty of providing a remedy, and that rem¬ 
edy, we think, is found in the constitutional provisions we are con¬ 
sidering. The allegations of the bill plainly present such a case. 
The health and comfort of the large communities inhabiting those 
parts of the state situated on the Mississippi river are not alone 
concerned, but contagious and typhoidal diseases introduced in 


FEDERAL JURISDICTION 


61 


the river communities may spread themselves throughout the ter¬ 
ritory of the state. Moreover, substantial impairment of the health 
and prosperity of the towns and cities of the state situated on the 
Mississippi river, including its commercial metropolis, would in¬ 
juriously affect the entire state. That suits brought by individuals, 
each for personal injuries, threatened or received, would be wholly 
inadequate and disproportionate remedies, requires no argument.” 

As will be perceived, the court there ruled that the mere fact that 
a state had no pecuniary interest in the controversy would not de¬ 
feat the original jurisdiction of this court, which might be invoked 
by the state as parens patriae, trustee, guardian, or representative 
of all or a considerable portion of its citizens; and that the threat¬ 
ened pollution of the waters of a river flowing between states, 
under the authority of one of them, thereby putting the health and 
comfort of the citizens of the other in jeopardy, presented a cause 
of action justiciable under the Constitution. 

In the case before us the state of Kansas files her bill as repre¬ 
senting and on behalf of her citizens, as well as in vindication of 
her alleged rights as an individual owner, and seeks relief in re¬ 
spect of being deprived of the waters of the river accustomed to 
flow through and across the state, and the consequent destruction 
of the property of herself and of her citizens and injury to their 
health and comfort. The action complained of is state action, and 
not the action of state officers in abuse or excess of their powers. 

The state of Colorado contends that, as a sovereign and inde¬ 
pendent state, she is justified, if her geographical situation and 
material welfare demand it in her judgment, in consuming for bene¬ 
ficial purposes all the waters within her boundaries; and that, as 
the sources of the Arkansas river are in Colorado, she may abso¬ 
lutely and wholly deprive Kansas and her citizens of any use of 
or share in the waters of that river. She says that she occupies to¬ 
ward the state of Kansas the same position that foreign states 
occupy toward each other, although she admits that the Constitu¬ 
tion does not contemplate that controversies between members of 
thb United States may be settled by reprisal or force of arms, and 
that to secure the orderly adjustment of such differences power 
was lodged in this court to hear and determine them. The rule of 
decision, however, it is contended, is the rule which controls for¬ 
eign and independent states in their relations to each other; that 
by the law of nations the primary and absolute right of a state 
is self-preservation; that the improvement of her revenues, arts, 
agriculture, and commerce are incontrovertible rights of sover¬ 
eignty ; that she has dominion over all things within her territory, 
including all bodies of water, standing or running, within her 
boundary lines; that the moral obligations of a state to observe 
the demands of comity cannot be made the subject of controversy 
between states; and that only those controversies are justiciable 


62 


FEDERAL JURISDICTION 


in this court which, prior to the Union, would have been just cause 
for reprisal by the complaining state; and that, according to inter¬ 
national law, reprisal can only be made when a positive wrong has 
been inflicted or rights stricti juris withheld. 

But when one of our states complains of the infliction of such 
wrong or the deprivation of such rights by another state, how shall 
the existence of cause of complaint be ascertained, and be accommo¬ 
dated if well founded? The states of this Union cannot make war 
upon each other. They cannot ‘'grant letters of marque and repris¬ 
al.” They cannot make reprisal on each other by embargo. They 
cannot enter upon diplomatic relations, and make treaties. ^ * 

The publicists suggest as just causes of war: defense; recovery 
of one’s own ; and punishment of an enemy. But, as between states 
of this Union, who can determine what would be a just cause of 
war? Comity demanded that navigable rivers should be free, and 
therefore the freedom of the Mississippi, the Rhine, the Scheldt, 
the Danube, the St. Lawrence, the Amazon, and other rivers has 
been at different times secured by treaty; but if a state of this 
Union deprives another state of its rights in a navigable stream, 
and Congress has not regulated the subject, as no treaty can be 
made between them, how is the matter to be adjusted? * * * 

Without subjecting the bill to minute criticism, we think its 
averments sufficient to present the question as to the power of one 
state of the Union to wholly deprive another of the benefit of water 
from a river rising in the former, and by nature, flowing into and 
through the latter; and that therefore this court, speaking broadly, 
has jurisdiction. * ^ * Sitting, as it were, as an international, 

as well as a domestic, tribunal, we apply federal law, state law, 
and international law, as the exigencies of the particular case may 
demand;® and we are unwilling in this case to proceed on the 

6 As to the law that may be applicable to interstate disputes, Brewer, J., 
said in the principal litigation at a later stage, Kansas v. Colorado, 206 U. S. 
46, 97, 98, 27 Sup. Ct 655, 51 L. Ed. 956 (1907)* 

“Nor is our jurisdiction ousted, even if, because Kansas and Colorado are 
states sovereign and independent in local matters, the relations between them 
depend in any respect upon principles of international law. International 
law is no alien in this tribunal. * * * [After quoting from the principal 

case, above, the sentence to which this note is appended:] One cardinal rule, 
underlying all the relations of the states to each other, is that of equality of 
right. Each state stands on the same level with all the rest. It can impose 
its own legislation on no one of the others, and is bound to yield its own 
views to none. Yet, whenever, as in the case of Missouri v. Illinois [180 U. 
S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497], the action of one state reaches, through 
the agency of natural laws, into the territory of another state, the question 
of the extent and the limitations of the rights of the two states becomes a 
matter of justiciable dispute between them, and this court is called upon to 
settle that dispute in such a way as will recognize the equal rights of both and 
at the same time establish justice between them. In other words, through 
these successive disputes and decisions this court is practically building up 
what may not improperly be called interstate common law. This very case 
l)resents a significant illustration. * * * Surely here is a dispute of a 

justiciable nature which might and ought to be tried and determined. If the 


FEDERAL JURISDICTION 


63 


mere technical admissions made by the demurrer. ♦ ♦ ♦ The 
result is that in view of the intricate questions arising on the rec¬ 
ord, we are constrained to forbear proceeding until all the facts 
are before us on the evidence. 

Demurrer overruled, with leave to answer. 

[Gray, J., took no part in the decision.] 


GREEN V. NEAUS LESSEE. 

(Supreme Court of United States, 1832. 6 Pet. 291, 8 L. Ed. 402.) 

[Error to the federal Circuit Court for West Tennessee. A 
Tennessee statute of limitations of 1797 was construed by the state 
courts in 1815 not to give title by seven years of adverse posses¬ 
sion unless the occupant held under a deed connected with a grant 
of the land. In Patton's Lessee v. Easton, 1 Wheat. 476, 4 L. Ed. 
139 (1816) these decisions were followed by the federal Supreme 
Court, and also in Powell’s Lessee v. Harman, 2 Pet. 241, 7 L. Ed. 
411 (1829). In Gray v. Darby’s Lessee, Mart. & Y. (Tenn.) 396 
(1825) the older Tennessee cases were overruled by the state Su¬ 
preme Court, and the statute of 1797 was held not to require the 
occupant’s deed to be connected with a grant. In a subsequent 
ejectment action in the federal court by Neal against Green, the 
federal decision upon this point was followed, and this writ of 
error was taken.] 

Mr. Justice McLean. ^ ^ ^ Since this decision [Gray v. 
Darby’s Lessee, cited above], the law has been considered as set¬ 
tled in Tennessee; and there has been so general an acquiescence 
in all the courts of the state, that the point is not now raised or dis¬ 
cussed. This construction has become a rule of property in the 
state, and numerous suits involving title have been settled by it. 
Had this been the settled construction of these statutes when the 
decision was made by this court, in the case of Patton’s Lessee v. 
Easton, there can be no doubt that that opinion would have con¬ 
formed to it. But the question is now raised, whether this court 
will adhere to its own decision, made under the circumstances 
stated, or yield to that of the judicial tribunals of Tennessee. This 
point has never before been directly decided by this court, on a 
question of general importance. The cases are numerous where 
the court have adopted the constructions given to the statute of a 
state by its supreme judicial tribunal; but it has never been de¬ 
cided that this court will overrule their own adjudication, estab- 

two states were absolutely independent nations it would be settled by treaty 
or by force. Neither of these ways being practicable, it must be settled by 
decision of this court.” 

[The bill in the principal case was then dismissed on the merits, after an 
exhaustive investigation and argument.] 



64 


FEDERAL JURISDICTION 


lishing an important rule of property, where it has been founded 
on the construction of a statute made in conformity to the deci¬ 
sions of the state at the time, so as to conform to a different con¬ 
struction adopted afterwards by the state. 

This is a question of grave import, and should be approached 
with great deliberation. It is deeply interesting in every point of 
view in which it may be considered. As a rule of property it is 
important; and equally so, as it regards the system under which 
the powers of this tribunal are exercised. It may be proper to 
examine in what light the decisions of the state courts, in giving 
a construction to their own statutes, have been considered by this 
court. * * * 

The Supreme Court holds in the highest respect decisions of 
state courts upon local laws forming rules of property. Shipp v. 
Miller’s Heirs, 2 Wheat. 316, 4 L. Ed. 248. In construing local 
statutes respecting real property, the courts of the Union are gov¬ 
erned by the decisions of the state tribunals. Thatcher v. Powell, 
6 Wheat. 119, 5 E. Ed. 221. The court says, in the case of Elmen- 
dorf V. Taylor et al., 10 Wheat. 152, 6 L. Ed. 289, “that the courts 
of the United States, in cases depending on the laws of a particu¬ 
lar state, will, in general, adopt the construction which the courts 
of the state have given to those laws.” “This course is founded 
upon the principle, supposed to be universally recognized, that the 
judicial department of every government, where such department 
exists, is the appropriate organ for construing the legislative acts 
of that government.” 

In Shelby v. Guy, 11 Wheat. 361, 6 L. Ed. 495, the court again de¬ 
clares, that “the statute laws of the states must furnish the rule of 
decision of the federal courts, as far as they comport with the Con¬ 
stitution of the United States, in all cases arising within the respec¬ 
tive states; and a fixed and received construction of their respec¬ 
tive statute laws, in their own courts, makes a part of such statute 
law.” The court again says, in Jackson ex dem. St. John v. Chew, 
12 Wheat. 153, 6 L. Ed. 583, “that this court adopts the local law of 
real property, as ascertained by the decisions of the state courts, 
whether these decisions are grounded on the construction of the 
statutes of the state, or form a part of the unwritten law of the 
state, which has become a fixed rule of property.” Quotations 
might be multiplied, but the above will show that this court has 
uniformly adopted the decisions of the state tribunals respectively, 
in the construction of their statutes, [and] that this has been done 
as a matter of principle, in all cases where the decision of a state 
court has become a rule of property. 

In a great majority of the causes brought before the federal tri¬ 
bunals, they are called to enforce the laws of the states. The rights 
of parties are determined under those laws, and it would be a 
strange perversion of principle, if the judicial exposition of those 


FEDERAL JURISDICTION 


65 


laws, by the state tribunals, should be disregarded. These exposi¬ 
tions constitute the law, and fix the rule of property. Rights are 
acquired under this rule, and it regulates all the transactions which 
come within its scope. 

It is admitted in the argument, that this court, in giving a con¬ 
struction to a local law, will be influenced by the decisions of the 
local tribunals; but it is contended that when such a construction 
shall be given in conformity to those decisions, it must be consid¬ 
ered final. That if the state shall change the rule, it does not com¬ 
port either with the consistency or dignity of this tribunal to adopt 
the change. Such a course, it is insisted, would recognize in the 
state courts a power to revise the decisions of this court, and fix 
the rule of property differently from its solemn adjudications. 
That the federal court, when sitting within a state, is the court of 
that state, being so constituted by the Constitution and laws of the 
Union; and as such, has an equal right with the state courts to fix 
the construction of the local law. 

On all questions arising under the Constitution and laws of the 
Union, this court may exercise a revising power, and its decisions 
are final and obligatory on all other judicial tribunals, state as well 
as federal. A state tribunal has a right to examine any such ques¬ 
tions and to determine them, but its decisions must conform to that 
of the Supreme Court, or the corrective power may be exercised. 
But the case is very different where a question arises under a local 
law. The decision of this question by the highest judicial tribunal 
of a state should be considered as final by this court; not because 
the state tribunal, in such a case, has any power to bind this court; 
but because, in the language of the court, in the case of Shelby et 
al. V. Guy, 11 Wheat. 361, 6 L. Ed. 495, “a fixed and received con¬ 
struction by a state, in its own courts, makes a part of the statute 
law.” 

The same reason which influences this court to adopt the con¬ 
struction given to the local law, in the first instance, is not less 
strong in favor of following it in the second, if the state tribunals 
should change the construction. A reference is here made, not to a 
single adjudication, but to a series of decisions which shall settle 
the rule. Are not the injurious effects on the interests of the citi¬ 
zens of a state as great in refusing to adopt the change of construc¬ 
tion, as in refusing to adopt the first construction? A refusal in 
the one case as well as in the other has the effect to establish, in the 
state, two rules of property. 

Would not a change in the construction of a law of the United 
States, by this tribunal, be obligatory on the state courts? The 
statute, as last expounded, would be the law of the Union; and 
why may not the same effect be given to the last exposition of a 
Hall Cases Const.L.—5 


GG 


FEDERAL JURISDICTION 


local law by the state court? The exposition forms a part of the 
local law, and is binding on all the people of the state, and its in¬ 
ferior judicial tribunals. It is emphatically the law of the state, 
which the federal court, while sitting within the state, and this 
court, when a case is brought before them, are called to enforce. 
If the rule as settled should prove inconvenient or injurious to the 
public interests, the legislature of the state may modify the law or 
repeal it. 

If the construction of the highest judicial tribunal of a state 
form a part of its statute law, as much as an enactment by the legis¬ 
lature, how can this court make a distinction between them? 
There could be no hesitation in so modifying our decisions as to 
conform to any legislative alteration in a statute; and why should 
not the same rule apply where the judicial branch of the state gov¬ 
ernment, in the exerci^se of its acknowledged functions, should, by 
construction, give a different effect to a statute, from what had at 
first been given to it. The charge of inconsistency might be made 
with more force and propriety against the federal tribunals for a 
disregard of this rule, than by conforming to it. They profess to 
be bound by the local law; and yet they reject the exposition of 
that law which forms a part of it. It is no answer to this objection 
that a different exposition was formerly given to the act which 
was adopted by the federal court. The inquiry is, what is the set¬ 
tled law of the state at the time the decision is made. This consti¬ 
tutes the rule of property within the state, by which the rights of 
litigant parties must be determined. As the federal tribunals pro¬ 
fess to be governed by this rule, they can never act inconsistently 
by enforcing it. If they change their decision, it is because the 
rule on which that decision was founded has been changed. 

The case under consideration illustrates the propriety and neces¬ 
sity of this rule. It is now the settled law of Tennessee that an ad¬ 
verse possession of seven years, under a deed for land that has been 
granted, will give a valid title. But by the decision of this court 
such a possession, under such evidence of right, will not give a 
valid title. In addition to the above requisites, this court have de¬ 
cided that the tenant must connect his deed with a grant. It there¬ 
fore follows that the occupant whose title is protected under the 
statutes before a state tribunal, is unprotected by them before the 
federal court. The plaintiff in ejectment, after being defeated in his 
action before a state court, on the above construction, to insure 
success has only to bring an action in the federal court. This may 
be easily done by a change of his residence, or a bona fide convey¬ 
ance of the land. 

Here is a judicial conflict arising from two rules of property in 
the same state, and the consequences are not only deeply injurious 
to the citizens qf the state, but calculated to engender the most 
lasting discontents. It is therefore essential to the interests of the 


FEDERAL JURISDICTION 


67 


country, and to the harmony of the judicial action of the federal 
and state governments, that there should be but one rule of prop¬ 
erty in a state. * * ♦ 

Judgment reversed. 

[Baldwin, J., dissented.] 


SWIFT V. TYSON (1842) 16 Pet. 1, 16, 18, 19, 10 L. Ed. 865, 
Mr. Justice Story (upholding an action brought in the New York 
federal court by an indorsee of a bill of exchange against the ac¬ 
ceptor who had been defrauded by the drawer) : 

‘Tn the present case, the plaintiff is a bona fide holder without 
notice for what the law deems a good and valid consideration, that 
is, for a pre-existing debt; and the only real question in the cause 
is, whether, under the circumstances of the present case, such a 
pre-existing debt constitutes a valuable consideration in the sense 
of the general rule applicable to negotiable instruments. We say, 
under the circumstances of the present case, for the acceptance 
having been made in New York, the argument on behalf of the de¬ 
fendant is, that the contract is to be treated as a New York con¬ 
tract, and therefore to be governed by the laws of New York, as 
expounded by its courts, as well upon general principles, as by the 
express provisions of the 34th section of the Judiciary Act of 1789, 
c. 20. And then it is further contended that, by the law of New 
York, as thus expounded by its courts, a pre-existing debt does not 
constitute, in the sense of the general rule, a valuable consideration 
applicable to negotiable instruments. * * ^ 

[After discussing the New York cases:] "‘But, admitting the 
doctrine to be fully settled in New York, it remains to be consid¬ 
ered whether it is obligatory upon this court, if it differs from the 
principles established in the general commercial law. It is observ¬ 
able that the courts of New York do not found their decisions upon 
this point upon any local statute or positive, fixed or ancient local 
usage; but they deduce the doctrine from the general principles of 
commercial law. It is, however, contended that the 34th section 
of the Judiciary Act of 1789, c. 20, furnishes a rule obligatory 
upon this court to follow the decisions of the state tribunals in all 
cases to which they apply. That section provides ‘that the laws 
of the several states, except where the Constitution, treaties, or 
statutes of the United States shall otherwise require or provide, 
shall be regarded as rules of decision in trials at common law in 
the courts of the United States, in cases where they apply.’ In 
order to maintain the argument, it is essential, therefore, to hold 
that the word ‘laws,’ in this section, includes within the scope of 
its meaning the decisions of the local tribunals. In the ordinary 
use of language, it will hardly be contended that the decisions of 
courts constitute laws. They are, at most, only evidence of what 



68 


FEDERAL JURISDICTION 


the laws are, and are not of themselves laws. They are often re¬ 
examined, reversed, and qualified by the courts themselves, when¬ 
ever they are found to be either defective, or ill-founded or other¬ 
wise incorrect. The laws of a state are more usually understood 
to mean the rules and enactments promulgated by the legislative 
authority thereof, or long-established local customs having the 
force of laws. 

‘Tn all the various cases, which have hitherto come before us for 
decision, this court have uniformly supposed that the true inter¬ 
pretation of the 34th section limited its application to state laws 
strictly local; that is to say, to the positive statutes of the state, 
and the construction thereof adopted by the local tribunals, and 
to rights and titles to things having a permanent locality, such as 
the rights and titles to real estate, and other matters immovable 
and intraterritorial in their nature and character. It never has 
been supposed by us that the section did apply, or was designed to 
apply, to questions of a more general nature, not all dependent upon 
local statutes or local usages of a fixed and permanent operation, 
as, for example, to the construction of ordinary contracts or other 
written instruments, and especially to questions of general com¬ 
mercial law, where the state tribunals are called upon to perform 
the like functions as ourselves, that is, to ascertain, upon general 
reasoning and legal analogies, what is the true exposition of the 
contract or instrument, or what is the just rule furnished by the 
principles of commercial law to govern the cas6. And we have not 
now the slightest difficulty in holding that this section, upon its 
true intendment and construction, is strictly limited to local stat¬ 
utes and local usages of the character before stated, and does not 
extend to contracts and other instruments of a commercial nature, 
the true interpretation and effect whereof are to be sought, not in 
the decisions of the local tribunals, but in the general principles and 
doctrines of commercial jurisprudence. Undoubtedly, the decisions 
of the local tribunals upon such subjects are.entitled to, and will re¬ 
ceive, the most deliberate attention and respect of this court; but 
they cannot furnish positive rules, or conclusive authority, by which 
our own judgments are to be bound up and governed. The law 
respecting negotiable instruments may be truly declared, in the 
language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 
2 Burr. R. 882, 887, to be in a great measure, not the law of a single 
country only, but of the commercial world. ‘Non erit alia lex 
Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gen- 
tes, et omni tempore, una eademque lex obtinebit.' 

“It becomes necessary for us, therefore, upon the present occa¬ 
sion, to express our own opinion of the true result of the commer¬ 
cial law upon the question now before us. And we have no hesita¬ 
tion in saying, that a pre-existing debt does constitute a valuable 


FEDERAL JURISDICTION 


69 


consideration in the sense of the general rule already stated, as 
applicable to negotiable instruments.” 

[Catron, J., expressed no opinion upon the latter point in the 
case, so far as concerned instruments taken as collateral security 
only.] 


KUHN V. FAIRMONT COAL CO. 

(Supreme Court of United States, 1910. 215 U. S. 349, 30 Sup. Ct. 140, 54 

L. Ed. 228.) 

[Questions certified from federal Circuit Court of Appeals for 
Fourth Circuit. In 1889, Kuhn, a citizen of Ohio, conveyed to one 
Camden all the coal under a tract of land in West Virginia owned 
by Kuhn, granting also the right to enter said land, to remove the 
coal, and to make all necessary structures, ways, and openings for 
this purpose. Camden’s interest in said coal passed to defendant, a 
West Virginia corporation, in January, 1906, and the latter in tak¬ 
ing out the coal left the surface of Kuhn’s land unsupported so that 
it fell, for which, on January 18, 1906, Kuhn sued defendant in the 
federal Circuit Court for West Virginia. A similar suit had been 
brought by one Griffin in the state courts in 1902, which was de¬ 
cided for the defendant by the state supreme court in November, 
1905. A rehearing was granted, and on March 27, 1906, final judg¬ 
ment was given against Griffin. Kuhn’s suit was decided against 
him on demurrer by the federal court on April 16, 1907, and he 
appealed to the Circuit Court of Appeals. Until the decision in the 
Griffin case there was no statute, decision, or local custom gov¬ 
erning the question in controversy in the state. The federal appel¬ 
late court certified to the Supreme Court the question whether, 
under these circumstances, it was bound by the decision of the state 
courts in the Griffin case.] 

Mr. Justice Harlan. * * * Was not the federal court bound 

to determine the dispute between the parties according to its own 
independent judgment as to what rights were acquired by them un¬ 
der the contract relating to the coal? If the federal court was of 
opinion that the coal company was under a legal obligation, while 
taking out the coal in question, to use such precautions and to 
proceed in such way as not to destroy or materially injure the sur¬ 
face land, was it bound to adjudge the contrary simply because, in 
a single case, to which Kuhn was not a party, and which was de¬ 
termined after the right of the present parties had accrued and 
become fixed under their contract, and after the injury complained 
of had occurred, the state court took a different view of the law? 
If, when the jurisdiction of the federal court was invoked, Kuhn, 
the citizen of Ohio, had, in its judgment, a valid cause of action 
against the coal company for the injury of which he complained, 



70 


FEDERAL JURISDICTION 


was that court obliged to subordinate its view of the law to that 
expressed by the state court? 

In cases too numerous to be here cited, the general subject sug¬ 
gested by these questions has been considered by this court. 
* * [Here follow quotations from Burgess v. Seligman, 107 

U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359; and Bucher v. Cheshire Ry., 
125 U. S. 555, 8 Sup. Ct. 974, 31 E. Ed. 795, and citations of other 
cases.] 

We take it, then that it is no longer to be questioned that the 
federal courts, in determining cases before them, are to be guided 
by the following rules: 1. When administering state laws and de¬ 
termining rights accruing under those laws, the jurisdiction of the 
federal court is an independent one, not subordinate to, but co-ordi¬ 
nate and concurrent with, the jurisdiction of the state courts. 2. 
Where, before the rights of the parties accrued, certain rules relat¬ 
ing to real estate have been so established by state decisions as to 
become rules of property and action in the state, those rules are ac¬ 
cepted by the federal court as authoritative declarations of the law 
of the state. 3. But where the law of the state has not been thus 
settled, it is not only the right, but the duty, of the federal court 
to exercise its own judgment, as it also always does when the case 
before it depends upon the doctrines of commercial law and general 
jurisprudence. 4. So, when contracts and transactions are entered 
into and rights have accrued under a particular state of the local 
decisions, or zuhen there has been no decision by the state court on 
the particular question involved, then the federal courts properly 
claim the right to give efiect to their own judgment as to what 
is the law of the state applicable to the case, even where a different 
view has been expressed by the state court after the rights of par¬ 
ties accrued. But even in such cases, for the sake of comity and to 
avoid confusion, the federal court should always lean to an agree¬ 
ment with the state court if the question is balanced with 
doubt. * * * 

It would seem that according to those principles, now firmly 
established, the duty was upon the federal court, in the present 
case, to exercise its independent judgment as to what were the 
relative rights and obligations of the parties under their written 
contract. The question before it was as to the liability of the coal 
company for an injury arising from the failure of that corporation, 
while mining and taking out the coal, to furnish sufficient support 
to the overlying or surface land. Whether such a case involves a 
rule of property in any proper sense of those terms, or only a ques¬ 
tion of general law, within the province of the federal court to de¬ 
termine for itself, the fact exists that there had been no determina¬ 
tion of the question by the state court before the rights of the par¬ 
ties accrued and became fixed under their contract, or before the 
injury complained of. In either case, the federal court was bound 


FEDERAL JURISDICTION 


71 


under established doctrines to exercise its own independent judg¬ 
ment, with a leaning, however, as just suggested, for the sake of 
harmony, to an agreement with the state court, if the question of 
law involved was deemed to be doubtful. If, before the rights of 
the parties in this case were fixed by written contract, it had be¬ 
come a settled rule of law in West Virginia, as manifested by deci¬ 
sions of its highest court, that the grantee or his successors in such 
a deed as is here involved was under no legal obligation to guard 
the surface land of the grantor against injury resulting from the 
mining and removal of the coal purchased, a wholly different ques¬ 
tion would have been presented. 

There are adjudged cases involving the meaning of written con¬ 
tracts having more or less connection with land that were not re¬ 
garded as involving a rule in the law of real estate, but as only pre¬ 
senting questions of general law, touching which the federal courts 
have always exercised their own judgment, and in respect to which 
they are not bound to accept the views of the state courts. * * * 

[Here follow discussions of Chicago v. Robbins, 2 Black, 418, 17 
L. Ed. 298 (1863) ; Lane v. Vick, 3 How. 464, 11 L. Ed. 681 (1845); 
Foxcroft V. Mallett, 4 How. 353, 11 L. Ed. 1008 (1846); Russell v. 
Southard, 12 How. 139, 13 L. Ed. 927 (1851); Yates v. Milwaukee, 
10 Wall. 497, 19 L. Ed. 984 (1871) ; Louisville Tr. Co. v. Cincinnati, 
76 Fed. 296, 22 C. C. A. 334 (1896); Gt. So. Hotel Co. v. Jones, 193 

U. S. 532, 24 Sup. Ct. 576, 48 L. Ed. 778 (1904); East Cent. Co. 

V. Central Eureka Co., 204 U. S. 266, 27 Sup. Ct. 258, 51 L. Ed. 
476 (1907); and Brine v. Hartford Ins. Co., 96 U. S. 627, 24 L. Ed. 
858 (1878).] 

The question here involved as to the scope and effect of the writ¬ 
ing given by Kuhn to Camden does not depend upon any statute 
of West Virginia, nor upon any rule established by a course of 
decisions made before the rights of parties accrued. So that the 
words above quoted from East Central Eureka Min. Co. v. Central 
Eureka Min. Co. [“The construction and effect of a conveyance 
between private parties is a matter as to which we follow the court 
of the state’’] must not be interpreted as applicable to a case like 
the one before us, nor as denying the authority and duty of the fed¬ 
eral court, when determining the effect of conveyances or written 
instruments between private parties, citizens of different states, to 
exercise its own independent judgment where no authoritative 
state decision had been rendered by the state court before the rights 
of the parties accrued and became fixed. 

Question answered in negative. 

Mr. Justice Holmes [with whom concurred White and Mc¬ 
Kenna, JJ.], dissenting. This is a question of the title to real es¬ 
tate. It does not matter in what form of action it arises, the deci¬ 
sion must be the same in an action of tort that it would be in a 


72 


FEDERAL JURISDICTION 


writ of right. The title to real estate in general depends upon the 
statutes and decisions of the state within which it lies. I think 
it a thing to be regretted if, while in the great mass of cases tlie 
state courts finally determine who is the owner of land, how much 
he owns, and what he conveys by his deed, the courts of the United 
States, when by accident and exception the same question comes 
before them, do not follow what, for all ordinary purposes, is the 
law. 

I admit that plenty of language can be found in the earlier cases 
to support the present decision. That is not surprising, in view of 
the uncertainty and vacillation of the theory upon which Swift v. 
Tyson, 16 Pet. 1, 10 L. Ed. 865 (1842), and the later extensions of 
its doctrine, have proceeded. But I suppose it will be admitted 
on the other side that even the independent jurisdiction of the cir¬ 
cuit courts of the United States is a jurisdiction only to declare 
the law, at least, in a case like the present, and only to declare the 
law of the state. It is not an authority to make it. Swift v. Tyson 
was justified on the ground that that was all that the state courts 
did. But, as has been pointed out by a recent accomplished and 
able writer, that fiction had to be abandoned and was abandoned 
when this court came to decide the municipal-bond cases, beginning 
with Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520 (1864). Gray, 
Nature & Sources of the Law, §§ 535-550. In those cases the court 
followed Chief Justice Taney in Ohio L. Ins. & T. Co. v. Debolt, 16 
How. 416, 14 L. Ed. 997 (1853), in recognizing the fact that deci¬ 
sions of state courts of last resort make law for the state. The 
principle is that a change of judicial decision after a contract has 
been made on the faith of an earlier one the other way is a change 
of the law. 

The cases of the class to which I refer have not stood on the 
ground that this court agreed with the first decision, but on the 
ground that the state decision made the law for the state, and there¬ 
fore should be given only a prospective operation when contracts 
had been entered into under the law as earlier declared. Douglass 
V. Pike County, 101 U. S. 677, 25 L. Ed. 968 (1880); Green County 
V. Conness, 109 U. S. 104, 3 Sup. Ct. 69, 27 L. Ed. 872 (1883). In 
various instances this court has changed its decision or rendered 
different decisions on similar facts arising in different states, in 
order to conform to what is recognized as the local law. Fairfield 
V. Gallatin County, 100 U. S. 47, 25 L. Ed. 544 (1879). 

Whether Swift v. Tyson can be reconciled with Gelpcke v. Du¬ 
buque, I do not care to inquire. I assume both cases to represent 
settled doctrines, whether reconcilable or not. But the moment 
you leave those principles which it is desirable to make uniform 
throughout the United States, and which the decisions of this court 
tend to make uniform, obviously it is most undesirable for the 


FEDERAL JURISDICTION 


7a 


courts of the United States to appear as interjecting an occasional 
arbitrary exception to a rule that in every other case prevails. I 
never yet have heard a statement of any reason justifying the pow¬ 
er, and I find it hard to imagine one. The rule in Gelpcke v. Du¬ 
buque gives no help when the contract or grant in question has not 
been made on the faith of a previous declaration of law. I know of 
no authority in this court to say that, in general, state decisions 
shall make law only for the future. Judicial decisions have had 
retrospective operation for near a thousand years. There were 
enough difficulties in the way, even in cases like Gelpcke v. Du¬ 
buque, but in them there was a suggestion or smack of constitu¬ 
tional right. Here there is nothing of that sort. It is said that we 
must exercise our independent judgment—but as to what? Surely, 
as to the law of the states. Whence does that law issue? Cer¬ 
tainly not from us. But it does issue, and has been recognized by 
this court as issuing, from the state courts as well as from the state 
legislatures. When we know what the source of the law has said 
that it shall be, our authority is at an end. The law of a state does 
not become something outside of the state court, and independent 
of it, by being called the common law. Whatever it is called, it is 
the law as declared by the state judges, and nothing else. 

If, as I believe, my reasoning is correct, it justifies our stopping 
when we come to a kind of case that, by nature and necessity, is 
peculiarly local, and one as to which the latest intimations, and, 
indeed, decisions of this court are wholly in accord with what I 
think to be sound law. * * * It is admitted that we are bound 

by a settled course of decisions, irrespective of contract, because 
they make the law. I see no reason why we are less bound by a 
single one.*^ 

7 The federal Circuit Court of Appeals finally followed the West Virginia 
decision, Pritchard, J., saying: “It must be borne in mind that the decision 
of the West Virginia Court of Appeals will be held by the courts of that state 
to be a rule of property in that state in all suits that may be instituted be¬ 
tween citizens of said state. If this court should decide otherwise, we would 
have a condition in that state, which would be without a parallel in judicial 
procedure. Under such circumstances, we would have one rule of property 
by w-hich citizens of West Virginia would be governed and an entirely dif¬ 
ferent rule of property where a suit was instituted by a nonresident of West 
Virginia in the federal court This would necessarily result in a great in¬ 
justice and lead to interminable confusion; and, on that account, we would 
be inclined to adopt the rule of the West Vir^nia Supreme Court of Appeals, 
even if, in view of the peculiar provisions of the conveyance by which the 
land in controversy was transferred, we did not find ourselves in accord with 
that tribunal.” Kuhn v. Fairmont Coal Co., 179 Fed. 191, 210, 102 C. C. A. 
457 (1910). 


74 


POWERS OF CONGRESS 


POWERS OF CONGRESS 
I. General Principles ^ 


UNITED STATES v. CRUIKSHANK (1876) 92 U. S. 542, 549- 
551, 23 L. Ed. 588, Mr. Chief Justice Waite: 

“We have in our political system a government of the United 
States and a government of each of the several states. Each one of 
these governments is distinct from the others, and each has citizens 
of its own who owe it allegiance, and whose rights, within its juris¬ 
diction, it must protect. The same person may be at the same time 
a citizen of the United States and a citizen of a state, but his rights 
of citizenship under one of these governments will be different from 
those he has under the other. Slaughter-House Cases, 16 Wall. 74, 
21 L. Ed. 394. * ♦ ♦ 

“Experience made the fact known to the people of the United 
States that they required a national government for national pur¬ 
poses. * * * For this reason, the people of the United States 

* * * ordained and established the government of the United 

States, and defined its powers by a Constitution, which they adopt¬ 
ed as its fundamental law, and made its rules of action. 

“The government thus established and defined is to some extent 
a government of the states in their political capacity. It is also, for 
certain purposes, a government of the people. Its powers are limit¬ 
ed in number, but not in degree. Within the scope of its powers, as 
enumerated and defined, it is supreme and above the states; but 
beyond, it has no existence. It was erected for special purposes 
and endowed with all the powers necessary for its own preservation 
and the accomplishment of the ends its people had in view. It can 
neither grant nor secure to its citizens any right or privilege not ex¬ 
pressly or by implication placed under its jurisdiction. 

“The people of the United States resident within any state are 
subject to two governments, one state, and the other national; but 
there need be no conflict between the two. The powers which one 
possesses, the other does not. They are established for different 
purposes, and have separate jurisdictions. Together they make one 
whole, and furnish the people of the United States with a complete 
government, ample for the protection of all their rights at home and 
abroad. True it may sometimes happen that a person is amenable 
to both jurisdictions for one and the same act. Thus, if a marshal 
of the United States is unlawfully resisted while executing the pro- 

1 For discussion of principles, see Black, Const. I/aw (3d Ed.) §§ 102-104, 



GENERAL PRINCIPLES 


75 


cess of the courts within a state, and the resistance is accompanied 
by an assault on the officer, the sovereignty of the United States is 
violated by the resistance, and that of the state by the breach of 
peace, in the assault. So, too, if one passes counterfeited coin of the 
United States within a state, it may be an offence against the Unit¬ 
ed States and the state: the United States, because it discredits the 
coin; and the state, because of the fraud upon him to whom it is 
passed. This does not, however, necessarily imply that the two 
governments possess powers in common, or bring them into con¬ 
flict with each other. It is the natural consequence of a citizenship 
which owes allegiance to two sovereignties, and claims protection 
from both. The citizen cannot complain, because he has voluntari¬ 
ly submitted himself to such a form of government. He owes al¬ 
legiance to the two departments, so to speak, and within their re¬ 
spective spheres must pay the penalties which each exacts for dis¬ 
obedience to its laws. In return, he can demand protection from 
each within its own jurisdiction. 

“The government of the United States is one of delegated powers 
alone. Its authority is defined and limited by the Constitution. All 
powers not granted to it by that instrument are reserved to the 
states or the people. No rights can be acquired under the Constitu¬ 
tion or laws of the United States, except such as the government of 
the United States has the authority to grant or secure. All that 
cannot be so granted or secured are left under the protection of the 
states.'' * 

2 “There are within the territorial limits of each state two governments, 
restricted in their spheres of action, but independent of each other and su¬ 
preme within their respective spheres. Each has its separate departments; 
each has its distinct laws, and each has its own tribunals for their enforce¬ 
ment. Neither government can intrude within the jurisdiction, or authorize 
any interference therein by its judicial officers with the action of the other. 
The two governments in each state stand in their respective spheres of ac¬ 
tion in the same independent relation to each other, except in one particular, 
that they would if their authority embraced distinct territories. That particu¬ 
lar consists in the supremacy of the authority of the United States when any 
conflict arises between the two governments. The Constitution and the laws 
passed in pursuance of it, are declared by the Constitution itself to be the su¬ 
preme law of the land, and the judges of every state are bound thereby, ‘any¬ 
thing in the Constitution or laws of any state to the contrary notwithstanding.’ 
Whenever, therefore, any conflict arises between the enactments of the two sov¬ 
ereignties, or in the enforcement of their asserted authorities, those of the na¬ 
tional government must have supremacy until the validity of the different 
enactments and authorities can be Anally determined by the tribunals of the 
United States. This temporary supremacy until judicial decision by the na¬ 
tional tribunals, and the ultimate determination of the conflict by such deci¬ 
sion, are essential to the preservation of order and peace, and the avoidance 
of forcible collision between the two governments.”—Field, J., in Tarble’s 
Case, 13 Wall. 397, 406, 407, 20 L. Ed. 597 (1872). 


76 


POWERS OF CONGRESS 


GIBBONS V. OGDEN (1824) 9 Wheat. 1, 187-189, 6 L. Ed. 23, 
Mr. Chief Justice Marshaee: 

“As preliminary to the very able discussions of the Constitution 
which we have heard from the bar, and as having some influence on 
its construction, reference has been made to the political situation 
of these states, anterior to its formation.. It has been said that they 
were sovereign, were completely independent, and were connected 
with each other only by a league. This is true. But, when these 
allied sovereigns converted their league into a government, when 
they converted their congress of ambassadors, deputed to deliberate 
on their common concerns, and to recommend measures of general 
utility, into a legislature, empowered to enact laws on the most 
interesting subjects, the whole character in which the states appear 
underwent a change, the extent of which must be determined by a 
fair consideration of the instrument by which that change was ef¬ 
fected. 

“This instrument contains an enumeration of powers expressly 
granted by the people to their government. It has been said that 
these powers ought to be construed strictly. But why ought they 
to be so construed? Is there one sentence in the Constitution 
which gives countenance to this rule? In the last of the enumerat¬ 
ed powers, that which grants, expressly, the means for carrying all 
others into execution. Congress is authorized ‘to make all laws 
which shall be necessary and proper’ for the purpose. But this lim¬ 
itation on the means which may be used, is not extended to the 
powers which are conferred; nor is there one sentence in the Con¬ 
stitution, which has been pointed out by the gentlemen of the bar, 
or which we have been able to discern, that prescribes this rule. 
We do not, therefore, think ourselves justified in adopting it. 
What do gentlemen mean by a strict construction? If they contend 
only against that enlarged construction which would extend words 
beyond their natural and obvious import, we might question the ap¬ 
plication of the term, but should not controvert the principle. If 
they contend for that narrow construction which, in support of 
some theory not to be found in the Constitution, would deny to the 
government those powers which the words of the grant, as usually 
understood, import, and which are consistent with the general 
views and objects of the instrument; for that narrow construction, 
which would cripple the government, and render it unequal to the 
objects for which it is declared to be instituted, and to which the 
powers given, as fairly understood, render it competent; then we 
cannot perceive the propriety of this strict construction, nor adopt 
it as the rule by which the Constitution is to be expounded. As 
men whose intentions require no concealment, generally employ the 
words which most directly and aptly express the ideas they intend 
to convey, the enlightened patriots who framed our Constitution, 


GENERAL PRINCIPLES 


77 


and the people who adopted it, must be understood to have employ¬ 
ed words in their natural sense, and to have intended what they 
have said. If, from the imperfection of human language, there 
should be serious doubts respecting the extent of any given power, 
it is a well-settled rule that the objects for which it was given, es¬ 
pecially when those objects are expressed in the instrument itself, 
should have great influence in the construction. We know of no 
reason for excluding this rule from the present case. The grant 
does not convey power which might be beneficial to the grantor, if 
retained by himself, or which can enure solely to the benefit of the 
grantee; but is an investment of power for the general advantage, 
in the hands of agents selected for that purpose; which power can 
never be exercised by the people themselves, but must be placed in 
the hands of agents, or lie dormant. We know of no rule for con¬ 
struing the extent of such powers, other than is given by the lan¬ 
guage of the instrument which confers them, taken in connection 
with the purposes for which they were conferred.” 


McCulloch v. Maryland. 

(Supreme Court of the United States, 1819. 4 Wheat. 316, 4 L. Ed. 579.) 

[Error to the Court of Appeals of Maryland. In 1816 Congress 
incorporated the Bank of the United States, and one of its branches 
was in 1817 established at Baltimore. In 1818 a Maryland statute 
subjected all banks in the state not chartered by the legislature to 
a stamp tax upon their note issues. McCulloch, cashier of the said 
branch bank, was held by the state courts liable to penalties for 
violating this act, and this writ was taken.] 

Mr. Chief Justice Marshall. * * * The first question made 
in the cause is, has Congress power to incorporate a bank? 
* * * In discussing this question, the counsel for the state of 

Maryland have deemed it of some importance, in the construction 
of the Constitution, to consider that instrument not as emanating 
from the people, but as the act of sovereign and independent states. 
The powers of the general government, it has been said, are dele¬ 
gated by the states, who alone are truly sovereign; and must be 
exercised in subordination to the states, who alone possess su¬ 
preme dominion. 

It would be difficult to sustain this proposition. The convention 
which framed the Constitution was, indeed, elected by the state 
legislatures. But the instrument, when it came from their hands, 
was a mere proposal, without obligation, or pretensions to it. It 
was reported to the then existing Congress of the United States, 
with a request that it might “be submitted to a convention of dele¬ 
gates, chosen in each state, by the people thereof, under the recom- 



78 


POWERS OF CONGRESS 


mendation of its legislature, for their assent and ratification.” This 
mode of proceeding was adopted; and by the convention, by Con¬ 
gress, and by the state legislatures, the instrument was submitted 
to the people. They acted upon it, in the only manner in which 
they can act safely, effectively, and wisely, on such a subject, by 
assembling in convention. It is true, they assembled in their sev¬ 
eral states; and where else should they have assembled? No politi¬ 
cal dreamer was ever wild enough to think of breaking down the 
lines which separate the states, and of compounding the American 
people into one common mass. Of consequence, when they act, 
they act in their states. But the measures they adopt do not, on 
that account, cease to be the measures of the people themselves, or 
become the measures of the state governments. 

From these conventions the Constitution derives its whole au¬ 
thority. The government proceeds directly from the people; is 
“ordained and established” in the name of the people; and is de¬ 
clared to be ordained, “in order to form a mere perfect union, es¬ 
tablish justice, insure domestic tranquility, and secure the bless¬ 
ings of liberty to themselves and to their posterity.” The assent 
of the states, in their sovereign capacity, is implied in calling a 
convention, and thus submitting that instrument to the people. 
But the people were at perfect liberty to accept or reject it; and 
their act was final. It required not the affirmance, and could not 
be negatived, by the state governments. The Constitution, when 
thus adopted, was of complete obligation, and bound the state 
sovereignties. 

It has been said, that the people had already surrendered all 
their powers to the state sovereignties, and had nothing more to 
give. But, surely, the question whether they may resume and mod¬ 
ify the powers granted to government, does not remain to be set¬ 
tled in this country. Much more might the legitimacy of the gen¬ 
eral government be doubted, had it been created by the states. 
The powers delegated to the state sovereignties were to be exercis¬ 
ed by themselves, not by a distinct and independent sovereignty, 
created by themselves. To the formation of a league, such as was 
the Confederation, the state sovereignties were certainly compe¬ 
tent. But when, “in order to form a more perfect union,” it was 
deemed necessary to change this alliance into an effective govern¬ 
ment, possessing great and sovereign powers, and acting directly 
on the people, the necessity of referring it to the people, and of de¬ 
riving its powers directly from them, was felt and acknowledged 
by all. 

The government of the Union, then (whatever may be the in¬ 
fluence of this fact on the case), is emphatically and truly a gov¬ 
ernment of the people. In form and in substance it emanates from 
them, its powers are granted by them, and are to be exercised di¬ 
rectly on them, and for their benefit. 


GENERAL PRINCIPLES 


7 ^ 


This government is acknowledged by all to be one of enumerat¬ 
ed powers. The principle, that it can exercise only the powers 
granted to it, would seem too apparent to have required to be en¬ 
forced by all those arguments which its enlightened friends, while 
it was depending before the people, found it necessary to urge. 
That principle is now universally admitted. But the question re¬ 
specting the extent of the powers actually granted, is perpetually 
arising, and will probably continue to arise, as long as our system 
.shall exist. ^ * 

If any one proposition could command the universal assent of 
mankind, we might expect it would be this: that the government 
of the Union, though limited in its powers, is supreme within its 
sphere of action. This would seem to result necessarily from its 
nature. It is the government of all; its powers are delegated by 
all; it represents all, and acts for all. Though any one state may 
be willing to control its operations, no state is willing to allow oth¬ 
ers to control them. The nation, on those subjects on which it can 
act, must necessarily bind its component parts. But this question 
is not left to mere reason: the people have, in express terms, de¬ 
cided it, by saying, “this Constitution, and the laws of the United 
States, which shall be made in pursuance thereof,’^ “shall be the 
supreme law of the land,’' and by requiring that the members of 
the state legislatures, and the officers of the executive and judicial 
departments of the states, shall take the oath of fidelity to it. 

s|c He * 

Among the enumerated powers, we do not find that of establish¬ 
ing a bank or creating a corporation. But there is no phrase in 
the instrument which, like the Articles of Confederation,® excludes 
incidental or implied powers; and which requires that everything 
granted shall be expressly and minutely described. Even the 
tenth amendment, which was framed for the purpose of quieting 
the excessive jealousies which had been excited, omits the word 
“expressly," and declares only that the powers “not delegated to the 
United States, nor prohibited to the states, are reserved to the 
states or to the people"; thus leaving the question, whether the 
particular power which may become the subject of contest, has 
been delegated to the one government, or prohibited to the other, 
to depend on a fair construction of the whole instrument. The 
men who drew and adopted this amendment, had experienced the 
embarrassments resulting from the insertion of this word in the 
Articles of Confederation, and probably omitted it to avoid those 
embarrassments. A constitution, to contain an accurate detail of 
all the subdivisions of which its great powers will admit, and of all 
the means by which they may be carried into execution, would 
partake of the prolixity of a legal code, and could scarcely be em- 

8 Article II : “Each state retains * ♦ * every power ♦ ♦ ♦ not 
* ♦ ♦ expressly delegated.” 


80 


POWERS OF CONGRESS 


braced by the human mind. It would probably never be under¬ 
stood by the public. Its nature, therefore, requires, that only its 
great outlines should be marked, its important objects designated, 
and the minor ingredients which compose those objects be deduc¬ 
ed from the nature of the objects themselves. That this idea was 
entertained by the framers of the American Constitution, is not 
only to be inferred from the nature of the instrument, but from 
the language. Why else were some of the limitations, found in 
the ninth section of the first article, introduced? It is also, in 
some degree, warranted by their having omitted to use any re¬ 
strictive term which might prevent its receiving a fair and just 
interpretation. In considering this question, then, we must never 
forget, that it is a constitution we are expounding. 

Although, among the enumerated powers of government, we do 
not find the word '‘bank,” or “incorporation,” we find the great 
powers to lay and collect taxes; to borrow money; to regulate 
commerce; to declare and conduct a war; and to raise and sup¬ 
port armies and navies. The sword and the purse, all the external 
relations, and no inconsiderable portion of the industry of the 
nation, are intrusted to its government. It can never be pretended 
that these vast powers draw after them others of inferior import¬ 
ance, merely because they are inferior. Such an idea can never be 
advanced. But it may, with great reason, be contended, that a 
goverment, intrusted with such ample powers, on the due execu¬ 
tion of which the happiness and prosperity of the nation so vitally 
depends, must also be intrusted with ample means for their execu¬ 
tion. The power being given, it is the interest of the nation to 
facilitate its execution. It can never be their interest, and cannot 
be presumed to have been their intention, to clog and embarrass 
its execution by withholding the most appropriate means. 
Throughout this vast republic, from the St. Croix to the Gulf of 
Mexico, from the Atlantic to the Pacific, revenue is to be collected 
and expended, armies are to be marched and supported. The ex¬ 
igencies of the nation may require, that the treasure raised in the 
North should be transported to the South, that raised in the East 
conveyed to the West, or that this order should be reversed. Is 
that construction of the Constitution to be preferred which would 
render these operations difficult, hazardous, and expensive? Can 
we adopt that construction (unless the words imperiously require 
it) which would impute to the framers of that instrument, when 
granting these powers for the public good, the intention of im¬ 
peding their exercise by withholding a choice of means? If, in¬ 
deed, such be the mandate of the Constitution, we have only to 
obey; but that instrument does not profess to enumerate the 
means by which the powers it confers may be executed; nor does 
it prohibit the creation of a corporation, if the existence of such a 


GENERAL TRINGIPLES 


81 


being be essential to the beneficial exercise of those powers. It is, 
then, the subject of fair inquiry, how far such means may be em^ 
ployed. * * ♦ 

The government which has a right to do an act, and has imposed 
on it the duty of performing that act, must, according to the dic¬ 
tates of reason, be allowed to select the means; and those who 
contend that it may not select any appropriate means, that one 
particular mode of effecting the object is excepted, take upon 
themselves the burden of establishing that exception. 

The creation of a corporation, it is said, appertains to sovereign¬ 
ty. This is admitted. But to what portion of sovereignty does 
it appertain? Does it belong to one more than to another? In 
America, the powers of sovereignty are divided between the gov¬ 
ernment of the Union, and those of the states. They are each 
sovereign, with respect to the objects committed to it, and neither 
sovereign with respect to the objects committed to the other. 
♦ * sH cannot well comprehend the process of reasoning 

which maintains, that a power appertaining to sovereignty cannot 
be connected with that vast portion of it which is granted to the 
general government, so far as it is calculated to subserve the legiti¬ 
mate objects of that government. The power of creating a cor¬ 
poration, though appertaining to sovereignty, is not, like the power 
of making war, or levying taxes, or of regulating commerce, a 
great substantive and independent power, which cannot be implied 
as incidental to other powers, or used as a means of executing 
them. It is never the end for which other powers are exercised, 
but a means by which other objects are accomplished. No con¬ 
tributions are made to charity for the sake of an incorporation, 
but a corporation is created to administer the charity; no semi¬ 
nary of learning is instituted in order to be incorporated, but the 
corporate character is conferred to subserve the purposes of edu¬ 
cation. No city was ever built with the sole object of being in¬ 
corporated, but is incorporated as affording the best means of be¬ 
ing well governed. The power of creating a corporation is never 
used for its own sake, but for the purpose of effecting something 
else. No sufficient reason is, therefore, perceived, why it may not 
pass as incidental to those powers which are expressly given, if it 
be a direct mode of executing them. 

But the Constitution of the United States has not left the right 
of Congress to employ the necessary means, for the execution of 
the powers conferred on the government, to general reasoning. 
To its enumeration of powers is added that of making “all laws 
which shall be necessary and proper, for carrying into execution 
the foregoing powers, and all other powers vested by this Consti¬ 
tution, in the government of the United States, or in any depart¬ 
ment thereof.’' 

Hall Cases Const.L.—6 


82 


POWERS OF CONGRESS 


The counsel for the state of Maryland has urged various argu¬ 
ments, to prove that this clause, though in terms a grant of pow¬ 
er, is not so in effect; but is really restrictive of the general right, 
which might otherwise be implied, of selecting means for execut¬ 
ing the enumerated powers. * * * The argument on which 

most reliance is placed, is drawn from the peculiar language of this 
clause. Congress is not empowered by it to make all laws, which 
may have relation to the powers conferred on the government, but 
such only as may be “necessary and proper” for. carrying them 
into execution. The word “necessary” is considered as controlling 
the whole sentence, and as limiting the right to pass laws for the 
execution of the granted powers, to such as are indispensable, 
and without which the power would be nugatory. That it excludes 
the choice of means, and leaves to Congress, in each case, that 
only which is most direct and simple. 

Is it true, that this is the sense in which the word “necessary” 
is always used? Does it always import an absglute physical ne¬ 
cessity, so strong, that one thing, to which another may be term¬ 
ed necessary, cannot exist without that other? We think it does 
not. If reference be had to its use, in the common affairs of the 
world, or in approved authors, we find that it frequently imports 
no more than that one thing is convenient, or useful, or essential 
to another. To employ the means necessary to an end, is general¬ 
ly understood as employing any means calculated to produce the 
end, and not as being confined to those single means, without 
which the end would be entirely unattainable. Such is the char¬ 
acter of human language, that no word conveys to the mind, in 
all situations, one single definite idea; -and nothing is more com¬ 
mon than to use words in a figurative sense. Almost all composi¬ 
tions contain words, which, taken in their rigorous sense, would 
convey a meaning different from that which is obviously intended. 
It is essential to just construction, that many words which im¬ 
port something excessive, should be understood in a more miti¬ 
gated sense—in that sense which common usage justifies. The 
word “necessary” is of this description. It has not a fixed character 
peculiar to itself. It admits of all degrees of comparison; and is 
often connected with other words, which increase or diminish the 
impression the mind receives of the urgency it imports. A 
thing may be necessary, very necessary, absolutely or indispensably 
necessary. To no mind would the same idea be conveyed, by 
these several phrases. This comment on the word is well il¬ 
lustrated, by the passage cited at the bar, from the tenth section of 
the first article of the Constitution. It is, we think, impossible 
to compare the sentence which prohibits a state from laying “im¬ 
posts, or duties on imports or exports, except what may be ab¬ 
solutely necessary for executing its inspection laws,” with that 


GENERAL PRINCIPLES 


83 


which authorizes Congress “to make all laws which shall be neces¬ 
sary and proper for carrying into execution’^ the powers of the gen¬ 
eral government, without feeling a conviction that the convention 
understood itself to change materially the meaning of the word 
“necessary” by prefixing the word “absolutely.” This word, then, 
like others, is used in various senses; and, in its construction, 
the subject, the context, the intention of the person using them, 
are all to be taken into view. 

Let this be done in the case under consideration. The subject 
is the execution of those great powers on which the welfare of a 
nation essentially depends. It must have been the intention of 
those who gave these powers, to insure, as far as human prudence 
could insure, their beneficial execution. This could not be done by 
confining the choice of means to such narrow limits as not to leave 
it in the power of Congress to adopt any which might be appro¬ 
priate, and which were conducive to the end. This provision is 
made in a constitution intended to endure for ages to come, and, 
consequently, to be adapted to the various crises of human affairs. 
To have prescribed the means by which government should, in 
all future time, execute its powers, would have been to change, 
entirely, the character of the instrument, and give it the properties 
of a legal code. It would have been an unwise attempt to pro¬ 
vide, by immutable rules, for exigencies which, if foreseen at all, 
must have been seen dimly, and which can be best provided for as 
they occur. To have declared that the best means shall not be 
used, but those alone without which the power given would be 
nugatory, would have been to deprive the legislature of the capaci¬ 
ty to avail itself of experience, to exercise its reason, and to ac¬ 
commodate its legislation to circumstances. If we apply this 
principle of construction to any of the powers of the government, 
we shall find it so pernicious in its operation that we shall be 
compelled to discard it. * * 

So, with respect to the whole penal code of the United States. 
Whence arises the power to punish in cases not prescribed by the 
Constitution? All admit that the government may, legitimately, 
punish any violation of its laws; and yet, this is not among the 
enumerated powers of Congress. The right to enforce the ob¬ 
servance of law, by punishing its infraction, might be denied with 
the more plausibility, because it is expressly given in some cases. 
Congress is empowered “to provide for the punishment of counter¬ 
feiting the securities and current coin of the United States,” and 
“to define and punish piracies and felonies committed on the high 
seas, and offences against the law of nations.” The several pow¬ 
ers of Congress may exist, in a very imperfect state to be sure, but 
they may exist and be carried into execution, although no punish¬ 
ment should be inflicted in cases where the right to punish is not 
expressly given. 


84 


POWERS OF CONGRESS 


Take, for example, the power ^'to establish post-offices and 
post-roads.” This power is executed by the single act of making 
the establishment. But from this has been inferred the power 
and duty of carrying the mail along the post-road, from one post- 
office to another. And, from this implied power, has again been 
inferred the right to punish those who steal letters from the post- 
office, or rob the mail. It may be said, with some plausibility, 
that the right to carry the mail, and to punish those who rob it, 
is not indispensably necessary to the establishment of a post-office 
and post-road. This right is, indeed essential to the beneficial 
exercise of the power, but not indispensably necessary to its ex¬ 
istence. So, of the punishment of the crimes of stealing or falsify¬ 
ing a record or process of a court of the United States, or of per¬ 
jury in such court. To punish these offences is certainly condu¬ 
cive to the due administration of justice. But courts may exist, 
and may decide the causes brought before them, though such 
crimes escape punishment. 

The baneful influence of this narrow construction on all the 
operations of the government, and the absolute impracticability of 
maintaining it without rendering the government incompetent to 
its great objects, might be illustrated by numerous examples drawn 
from the Constitution, and from our laws. The good sense of the 
public has pronounced, without hesitation, that the power of pun¬ 
ishment appertains to sovereignty, and may be exercised when¬ 
ever the sovereign has a right to act, as incidental to his constitu¬ 
tional powers. It is a means for carrying into execution all sov¬ 
ereign powers, and may be used, although not indispensably nec¬ 
essary. It is a right incidental to the power, and conducive to its 
beneficial exercise. 

If this limited construction of the word “necessary” must be 
abandoned in order to punish, whence is derived the rule which 
would reinstate it, when the government would carry its powers 
into execution by means not vindictive in their nature? If the 
word “necessary” means “needful,” “requisite,” “essential,” “con¬ 
ducive to,” in order to let in the power of punishment for the in¬ 
fraction of law, why is it not equally comprehensive when requir¬ 
ed to authorize the use of means which facilitate the execution of 
the powers of government without the infliction of punishment? 

In ascertaining the sense in which the word “necessary” is used 
in this clause of the Constitution, we may derive some aid from 
that with which it is associated. Congress shall have power “to 
make all laws which shall be necessary and proper to carry into 
execution” the powers of the government. If the word “neces¬ 
sary” was used in that strict and rigorous sense for which the 
counsel for the state of Maryland contend, it would be an extra¬ 
ordinary departure from the usual course of the human mind, as 
exhibited in composition, to add a word, the only possible effect 


GENERAL PRINCIPLES 


85 


of which is to qualify that strict and rigorous meaning; to present 
to the mind the idea of some choice of means of legislation not 
straitened and compressed within the narrow limits for which 
gentlemen contend. 

But the argument which most conclusively demonstrates the 
error of the construction contended for by the counsel for the state 
of Maryland, is founded on the intention of the convention, as 
manifested in the whole clause: ^ ^ 'phe clause is placed 

among the powers of Congress, not among the limitations on those 
powers. 2. Its terms purport to enlarge, not to diminish the pow¬ 
ers vested in the government. It purports to be an additional 
power, not a restriction on those already granted. No reason has 
been or can be assigned, for thus concealing an intention to nar¬ 
row the discretion of the national legislature, under words which 
purport to enlarge it. * * * 

The result of the most careful and attentive consideration be¬ 
stowed upon this clause is, that if it does not enlarge, it cannot be 
construed to restrain the powers of Congress, or to impair the right 
of the legislature to exercise its best judgment in the selection of 
measures, to carry into execution the constitutional powers of the 
government. If no other motive for its insertion can be suggested, 
a sufficient one is found in the desire to remove all doubts respect¬ 
ing the right to legislate on that vast mass of incidental powers 
which must be involved in the Constitution, if that instrument be 
not a splendid bauble. 

We admit, as all must admit, that the powers of the govern¬ 
ment are limited, and that its limits are not to be transcended. 
But we think the sound construction of the Constitution must al¬ 
low to the national legislature that discretion, with respect to the 
means by which the powers it confers are to be carried into execu¬ 
tion, which will enable that body to perform the high duties as¬ 
signed to it, in the manner most beneficial to the people. Let the 
end be legitimate, let it be within the scope of the Constitution, 
and all means which are appropriate, which are plainly adapted to 
that end, which are not prohibited, but consist with the letter and 
spirit of the Constitution, are constitutional. 

That a corporation must be considered as a means not less usual, 
not of higher dignity, not more requiring a particular specification 
than other means, has been sufficiently proved. * * * If a cor¬ 

poration may be employed indiscriminately with other means to 
carry into execution the powers of the government, no particular 
reason can be assigned for excluding the use of a bank, if required 
for its fiscal operations. To use one, must be within the discre¬ 
tion of Congress, if it be an appropriate mode of executing the 
powers of government. That it is a convenient, a useful, and 
essential instrument in the prosecution of its fiscal operations, is 
not now a subject of controversy. * * * But were its necessity 


86 


POWERS OF CONGRESS 


less apparent, none can deny its being an appropriate measure; 
and if it is, the degree of its necessity, as has been very justly ob¬ 
served, is to be discussed in another place. * * * 

After this declaration, it can scarcely be necessary to say, that 
the existence of state banks can have no possible influence on the 
question. No trace is to be found in the Constitution of an in¬ 
tention to create a dependence of the government of the Union on 
those of the states, for the execution of the great powers assigned 
to it. ’J' * * The choice of means implies a right to choose a 

national bank in preference to state banks, and Congress alone can 
make the election. 

After the most deliberate consideration, it is the unanimous and 
decided opinion of this court, that the act to incorporate the Bank 
of the United States is a law made in pursuance of the Constitu¬ 
tion, and is a part of the supreme law of the land. * * * 

[The law of Maryland was then held void. This part of the case 
is printed post, p. ^4.], 

Judgment reversed. 


LEGAL TENDER CASES (1871) 12 Wall. 457, 532-544, 20 L. 
Ed. 287, Mr. Justice Strong (upholding the issue of federal legal 
tender paper money during the Civil War) : 

“The powers conferred upon Congress must be regarded as 
related to each other, and all means for a common end. Each is 
but part of a system, a constituent of one whole. No single power 
is the ultimate end for which the Constitution was adopted. It 
may, in a very proper sense, be treated as a means for the accom¬ 
plishment of a subordinate object, but that object is itself a means 
designed for an ulterior purpose. Thus the power to levy and col¬ 
lect taxes, to coin money and regulate its value, to raise and sup¬ 
port armies or to provide for and maintain a navy, are instruments 
for the paramount object, which was to 'establish a government, 
sovereign within its sphere, with capability of self-preservation, 
thereby forming a union more perfect than that which existed 
under the old Confederacy. 

“The same may be asserted also of all the non-enumerated pow¬ 
ers included in the authority expressly given ^to make all laws 
which shall be necessary and proper for carrying into execution the 
specified powers vested in Congress, and all other powers vested 
by the Constitution in the government of the United States, or in 
any department or officer thereof.’ It is impossible to know what 
those non-enumerated powers are, and what is their nature and 
extent, without considering the purposes they were intended to 
subserve. Those purposes, it must be noted, reach beyond the 
mere execution of all powers definitely intrusted to Congress and 



GENERAL PRINCIPLES 


87 


mentioned in detail. They embrace the execution of all other pow¬ 
ers vested by the Constitution in the government of the United 
States, or in any department or officer thereof. It certainly was 
intended to confer upon the government the power of self-preser¬ 
vation. * * That would appear, then, to be a most unrea¬ 

sonable construction of the Constitution which denies to the gov¬ 
ernment created by it, the right to employ freely every means, 
not prohibited, necessary for its preservation, and for the fulfill¬ 
ment of its acknowledged duties. Such a right, we hold, was given " 
by the last clause of the eighth section of its first article. The 
means or instrumentalities referred to in that clause, and authoriz¬ 
ed, are not enumerated or defined. In the nature of things enu¬ 
meration and specification were impossible. But they were left to 
the discretion of Congress, subject only to the restrictions that 
they be not prohibited, and be necessary and proper for carrying 
into execution the enumerated powers given to Congress, and all 
other powers vested in the government of the United States, or 
in any department or officer thereof. 

“And here it is to be observed it is not indispensable to the exist¬ 
ence of any power claimed for the federal government that it can 
be found specified in the words of the Constitution, or clearly 
and directly traceable to some one of the specified powers. Its 
existence may be deduced fairly from more than one of the sub¬ 
stantive powers expressly defined, or from them all combined. It is 
allowable to group together any number of them and infer from 
them all that the power claimed has been conferred. Such a treat¬ 
ment of the Constitution is recognized by its own provisions. This 
is well illustrated in its language respecting the writ of habeas 
corpus. The power to suspend the privilege of that writ is not 
expressly given, nor can it be deduced from any one of the particu¬ 
larized grants of power. Yet it is provided that the privileges of 
the writ shall not be suspended except in certain defined contin¬ 
gencies. This is no express grant of power. It is a restriction. 
But it shows irresistibly that somewhere in the Constitution power 
to suspend the privilege of the writ was granted, either by some 
one or more of the specifications of power, or by them all combin¬ 
ed. And, that important powers were understood by the people 
who adopted the Constitution to have been created by it, powers 
not enumerated, and not included incidentally in any one of those 
enumerated, is shown by the amendments. The first ten of these 
were suggested in the conventions of the states, and proposed at 
the first session of the first Congress, before any complaint was 
made of a disposition to assume doubtful powers. The preamble 
to the resolution submitting them for adoption recited that the 
'conventions of a number of the states had, at the time of their 
adopting the Constitution, expressed a desire, in order to prevent 
misconstruction or abuse of its powers, that further declaratory 


88 


POWERS OF CONGRESS 


and restrictive clauses should be added/ This was the origin of 
the amendments, and they are significant. They tend plainly to 
show that, in the judgment of those who adopted the Constitu¬ 
tion, there were powers created by it, neither expressly specified 
nor deducible from any one specified power, or ancillary to it 
alone, but which grew out of the aggregate of powers conferred 
upon the government, or out of the sovereignty instituted. Most 
of these amendments are denials of power which had not been 
expressly granted, and which cannot be said to have been neces¬ 
sary and proper for carrying into execution any other powers. 
Such, for example, is the prohibition of any laws respecting the 
establishment of religion, prohibiting the free exercise thereof, or 
abridging the freedom of speech or of the press. 

^‘And it is of importance to observe that Congress has often 
exercised, without question, powers that are not expressly given 
nor ancillary to any single enumerated power. Powers thus ex¬ 
ercised are what are called by Judge Story, in his Commentaries on 
the Constitution, resulting powers, arising from the aggregate 
powers of the government. He instances the right to sue and 
make contracts. Many others might be given. The oath required 
by law from officers of the government is one. So is building a 
capitol or a presidential mansion, and so also is the penal code. 
* * * Another illustration of this may be found in connection 

with the provisions respecting a census. The Constitution orders 
an enumeration of free persons in the different states every ten 
years. The direction extends no further. Yet Congress has re¬ 
peatedly directed an enumeration not only of free persons in the 
states, but of free persons in the territories, and not only an enu¬ 
meration of persons but the collection of statistics respecting age, 
sex, and production. Who questions the power to do this? 

“Indeed, the whole history of the government and of congres¬ 
sional legislation has exhibited the use of a very wide discretion, 
even in times of peace and in the absence of any trying emergen¬ 
cy, in the selection of the necessary and proper means to carry 
into effect the great objects for which the government was framed, 
and this discretion has generally been unquestioned, or, if ques¬ 
tioned, sanctioned by this court. This is true not only when an 
attempt has been made to execute a single power specifically given, 
but equally true when the means adopted have been appropriate to 
the execution, not of a single authority, but of all the powers creat¬ 
ed by the Constitution. Under the power to establish post-offices 
and post-roads Congress has provided for carrying the mails, pun¬ 
ishing theft of letters and mail robberies, and even for transporting 
the mails to foreign countries. Under the power to regulate com¬ 
merce, provision has been made by law for the improvement of har¬ 
bors, the establishment of observatories, the erection of light¬ 
houses, break-waters, and buoys, the registry, enrolment, and con- 


GENERAL PRINCIPLES 


81> 


struction of ships, and a code has been enacted for the government 
of seamen. Under the same power and other powers over the 
revenue and the currency of the county, for the convenience of the 
treasury and internal commerce, a corporation known as the Unit¬ 
ed States Bank was early created. To its capital the government 
subscribed one-fifth of its stock. But the corporation was a pri¬ 
vate one, doing business for its own profit. * ^ ^ 

“In Fisher v. Blight, 2 Cranch, 358, 2 L. Ed. 304, ♦ ♦ =«c ^ 
law giving priority to debts due to the United States was ruled 
to be constitutional for the reason that it appeared to Congress to 
be an eligible means to enable the government to pay the debts of 
the Union. * * * 

“Before we can hold the Legal Tender Acts unconstitutional, 
we must be convinced they were not appropriate means, or means 
conducive to the execution of any or all of the powers of Congress, 
or of the government, not appropriate in any plain degree (for we 
are not judges of the degree of appropriateness), or we must hold 
that they were prohibited. This brings us to the inquiry whether 
they were, when enacted, appropriate instrumentalities for carry¬ 
ing into effect, or executing any of the known powers of Congress, 
or of any department of the government. Plainly, to this inquiry, 
a consideration of the time when they were enacted, and of the cir¬ 
cumstances in which the government then stood, is important. It 
is not to be denied that acts may be adapted to the exercise of 
lawful power, and appropriate to it, in seasons of exigency, which 
would be inappropriate at other times. 

“We do not propose to dilate at length upon the circumstances 
in which the country was placed, when Congress attempted to 
make treasury notes a legal tender. They are of too recent occur¬ 
rence to justify enlarged description. Suffice it to say that a civil 
war was then raging which seriously threatened the overthrow 
of the government and the destruction of the Constitution itself. 
It demanded the equipment and support of large armies and 
navies, and the employment of money to an extent beyond the 
capacity of all ordinary sources of supply. Meanwhile the public 
treasury was nearly empty, and the credit of the government, if 
not stretched to its utmost tension, had become nearly exhausted. 

He * It was at such a time and in such circumstances that 
Congress was called upon to devise means for maintaining the 
army and navy, for securing the large supplies of money needed, 
and, indeed, for the preservation of the government created by the 
Constitution. It was at such a time and in such an emergency 
that the Legal Tender Acts were passed. Now, if it were certain 
that nothing else would have supplied the absolute necessities of 
the treasury, that nothing else would have enabled the govern¬ 
ment to maintain its armies and navy, that nothing else would 
have saved the government and the Constitution from destruction. 


90 


POWERS OP CONGRESS 


while the Legal Tender Acts would, could any one be bold enough 
to assert that Congress transgressed its powers? * * * 

“But if it be conceded that some other means might have been 
chosen for the accomplishment of these legitimate and necessary 
ends, the concession does not weaken the argument. It is urged 
now, after the lapse of nine years, and when the emergency has 
passed, that treasury notes without the legal tender clause might 
have been issued, and that the necessities of the government might 
thus have been supplied. Hence it is inferred there was no neces¬ 
sity for giving to the notes issued the capability of paying private 
debts. At best this is mere conjecture. But admitting it to be 
true, what does it prove? Nothing more than that Congress had 
the choice of means for a legitimate end, each appropriate, and 
adapted to that end, though, perhaps, in different degrees. What 
then? Can this court say that it ought to have adopted one rather 
than the other? * ♦ * 

“The rules of construction heretofore adopted, do not demand 
that the relationship between the means and the end shall be direct 
and 'immediate. ^ ^ 'phe case of Veazie Bank v. Fenno, 8 

Wall. 533, 19 L. Ed. 482, presents a suggestive illustration. There 
a tax of ten per cent, on state bank notes in circulation was held 
constitutional, not merely because it was a means of raising 
revenue, but as an instrument to put out of existence such a cir¬ 
culation in competition with notes issued by the government. 
There, this court, speaking through the Chief Justice, avowed that 
it is the constitutional right of Congress to provide a currency for 
the whole country; that this might be done by coin, or United 
States notes, or notes of national banks; and that it cannot be 
questioned Congress may constitutionally secure the benefit of 
such a currency to the people by appropriate legislation. It was 
said there can be no question of the power of this government to 
emit bills of credit; to make them receivable in payment of debts 
to itself; to fit them for use by those who see fit to use them in 
all the transactions of commerce; to make them a currency uni¬ 
form in value and description, and convenient and useful for cir¬ 
culation. Here the substantive power to tax was allowed to be 
employed for improving the currency. It is not easy to see why, if 
state bank notes can be taxed out of existence for the purposes of 
indirectly making United States notes more convenient and useful 
for commercial purposes, the same end may not be secured directly 
by making them a legal tender.” ^ 

[Bradeey, J., gave a concurring opinion, and Chase, C. J., and 
Ceifeord and Fifed, JJ., gave dissenting opinions. Neeson, J., 
also dissented.] 

4 The principal case overruled Hepburn v. Griswold, 8 Wall. 603, 19 L. Ed. 
513 (1870), which had held the Legal Tender Acts invalid as to debts con¬ 
tracted prior to their passage, upon reasoning which equally invalidated them 


GENERAL PRINCIPLES 


91 


KANSAS V. COLORADO (1907) 206 U. S. 46, 89-92, 27 Sup. Ct. 
655, 51 L. Ed. 956, Mr. Justice Bre^wejr (dismissing a petition of 
intervention filed by the United States in a suit between Kansas 
and Colorado to determine their respective rights to the use of 
the Arkansas river for irrigation purposes, said petition being based 
upon an alleged superior right of the national government to con¬ 
trol the whole system of reclaiming arid lands in a state, whether 
owned by the United States or not) : 

‘'That involves the question whether the reclamation of arid lands 
is one of the powers granted to the general government. As here¬ 
tofore stated, the constant declaration of this court from the begin¬ 
ning is that this government is one of enumerated powers. ^ ^ * 

Turning to the enumeration of the powers granted to Congress by 
the eighth section of the first article of the Constitution, it is enough 
to say that no one of them, by any implication, refers to the rec¬ 
lamation of arid lands. The last paragraph of the section, which 
authorizes Congress to make all laws which shall be necessary or 
proper for carrying into execution the foregoing powers, and all 
other powers vested by this Constitution in the government of 
the United States, or in any department or officer thereof, is not the 
delegation of a new and independent power, but simply provision 
for making effective the powers theretofore mentioned.® * * * 

“[The] argument [for the petition] runs substantially along this 
line: All legislative power must be vested in either the state or 
the national government; no legislative powers belong to a state 
government other than those which affect solely the internal af¬ 
fairs of that state; consequently all powers which are national in 
their scope must be found vested in the Congress of the United 
States. But the proposition that there are legislative powers af¬ 
fecting the nation as a whole which belong to, although not ex¬ 
pressed in the grant of powers, is in direct conflict with the doc- 
rine that this is a government of enumerated powers. That this 
is such a government clearly appears from the Constitution, inde- 

as to subsequent debts. The decision was by a vote of 5 to 3; Grier, J., one 
of the majority, resigning immediately thereafter. The two new judges who 
were appointed, Strong and Bradley, JJ., made part of the majority in the 
principal case. 

5 Referring to the preamble of the Constitution, Harlan, J., said, in Jacob¬ 
son V. Massachusetts, 197 U. S. 11, 22, 25 Sup. Ct. 358, 359, 49 L. Ed. 643, 3 
Ann. Cas. 765 (1905): “Although that preamble indicates the general pur¬ 
poses for which the people ordained and established the Constitution, it has 
never been regarded as the source of any substantive power conferred on the 
government of the United States, or on any of its departments. Such powers 
embrace only those expressly granted in the body of the Constitution, and 
such as may be implied from those so granted. Mthough, therefore, one of 
the declared objects of the Constitution was to secure the blessings of liberty 
to all under the sovereign jurisdiction and authority of the United States, no 
power can be exerted to that end by the United States, unless, apart from the 
preamble, it be found in some express delegation of power, or in some power 
to be properly implied therefrom. 1 Story, Const. § 462.” 


92 POWERS OF CONGRESS 

pendently of the amendments, for otherwise there would be an in¬ 
strument granting certain specified things made operative to grant 
other and distinct things. This natural construction of the original 
body of the Constitution is made absolutely certain by the tenth 
amendment. This amendment, which was seemingly adopted with 
prescience of just such contention as the present, disclosed the 
wide-spread fear that the national government might, under the 
pressure of a supposed general welfare, attempt to exercise powers 
which had not been granted. With equal determination the framers 
intended that no such assumption should ever find justification in 
the organic act, and that if, in the future, furthers powers seemed 
necessary, they should be granted by the people in the manner they 
had provided for amending that act. It reads: ‘The powers not 
delegated to the United States by the Constitution, nor prohibited 
by it to the states, are reserved to the states respectively, or to 
the people.’ The argument of counsel ignores the principal factor 
in this article, to wit, ‘the people.’ Its principal purpose was not 
the distribution of power between the United States and the states, 
but a reservation to the people of all powers not granted. The pre¬ 
amble of the Constitution declares who framed it,—‘We, the people 
of the United States,’ not the people of one state, but the people of 
all the states; and article 10 reserves to the people of all the states 
the powers not delegated to the United States. The powers affect¬ 
ing the internal affairs of the states not granted to the United States 
by the Constitution, nor prohibited by it to the states, are reserved 
to the states respectively, and all powers of a national character 
which are not delegated to the national government by the Consti¬ 
tution are reserved to the people of the United States. The people 
who adopted the Constitution knew that in the nature of things 
they could not foresee all the questions which might arise in the 
future, all the circumstances which might call for the exercise of 
further national powers than those granted to the United States, 
and, after making provision for an amendment to the Constitution 
by which any needed additional powers would be granted, they 
reserved to themselves all powers not so delegated. This article 
10 is not to be shorn of its meaning by any narrow or technical con¬ 
struction, but is to be considered fairly and liberally so as to give 
effect to its scope and meaning. As we said, construing an express 
limitation on the powers of Congress, in Fairbank v. United States, 
181 U. S. 283, 288, 45 L. Ed. 862, 865, 21 Sup. Ct. 648, 650: 

“‘We are not here confronted with a question of the extent of 
the powers of Congress, but one of the limitations imposed by 
the Constitution on its action, and it seems to us clear that the 
same rule and spirit of construction must also be recognized. If 
powers granted are to be taken as broadly granted and as carry¬ 
ing with them authority to pass those acts which may be reason¬ 
ably necessary to carry them into full execution; in other words. 


GENERAL PRINCIPLES 


93 


if the Constitution in its grant of powers is to be so construed 
that Congress shall be able to carry into full effect the powers 
granted, it is equally imperative that, where prohibition or limi¬ 
tation is placed upon the power of Congress, that prohibition or 
limitation should be enforced in its spirit and to its entirety. It 
would be a strange rule of construction that language granting 
powers is to be liberally construed, and that language of restriction 
is to be narrowly and technically construed. Especially is this 
true when, in respect to grants of powers, there is, as heretofore 
noticed, the help found in the last clause of the 8th section, and 
no such helping clause in respect to prohibitions and limitations. 
The true spirit of constitutional interpretation in both directions is 
to give full, liberal construction to the language, aiming ever to 
show fidelity to the spirit and purpose.* 

“This very matter of the reclamation of arid lands illustrates this: 
At the time of the adoption of the Constitution, within the known 
and conceded limits of the United States there were no large tracts 
of arid land, and nothing which called for any further action than 
that which might be taken by the legislature of the state in which 
any particular tract of such land was to be found; and the Consti¬ 
tution, therefore, makes no provision for a national control of the 
arid regions or their reclamation. But as our national territory 
has been enlarged, we have within our borders extensive tracts of 
arid lands which ought to be reclaimed, and it may well be that no 
power is adequate for their reclamation other than that of the na¬ 
tional government. But, if no such power has been granted, none 
can be exercised.** 


UNITED STATES v. DE WITT (1870) 9 Wall. 41,43-45,19 L. 
Ed. 593, Mr. Chief Justice Chase (holding invalid a federal statute 
forbidding any one to offer for sale petroleum illuminating oil be¬ 
low a certain fire test) : 

“That Congress has power to regulate commerce with foreign 
nations and among the several states, and with the Indian tribes, 
the Constitution expressly declares. But this express grant of 
power to regulate commerce among the states has always been 
understood as limited by its terms; and as a virtual denial of any 
power to interfere with the internal trade and business of the sep¬ 
arate states; except, indeed, as a necessary and proper means for 
carrying into execution some other power expressly granted or 
vested. 

“It has been urged in argument that the provision under which 
this indictment was framed is within this exception; that the 
prohibition of the sale of the illuminating oil described in the in¬ 
dictment was in aid and support of the internal revenue tax imposed 



94 


POWERS OP CONGRESS 


on Other illuminating oils. And we have been referred to provi¬ 
sions, supposed to be analogous, regulating the business of distill¬ 
ing liquors, and the mode of packing various manufactured arti¬ 
cles ; but the analogy appears to fail at the essential point, for the 
regulations referred to are restricted to the very articles which 
are the subject of taxation, and are plainly adapted to secure the 
collection of the tax imposed; while, in the case before us, no tax 
is imposed on the oils the sale of which is prohibited. If the pro¬ 
hibition, therefore, has any relation to taxation at all, it is merely 
that of increasing the production and sale of other oils, and, con¬ 
sequently, the revenue derived from them, by excluding from the 
market the particular kind described. 

“This consequence is too remote and too uncertain to warrant us 
in saying that the prohibition is an appropriate and plainly adapted 
means for carrying into execution the power of laying and col¬ 
lecting taxes. There is, indeed, no reason for saying that it was 
regarded by Congress as such a means, except that it is found in 
an act imposing internal duties. Standing by itself, it is plainly 
a regulation of police; and that it was so considered, if not by 
the Congress which enacted it, certainly by the succeeding Con¬ 
gress, may be inferred from the circumstance, that while all spe¬ 
cial taxes on illuminating oils were repealed by the Act of July 
20th, 1868, which subjected distillers and refiners to the tax on sales 
as manufacturers, this prohibition was left unrepealed. As a police 
regulation, relating exclusively to the internal trade of the states, 
it can only have effect where the legislative authority of Congress 
excludes, territorially, all state legislation, as for example, in the 
District of Columbia. Within state limits, it can have no consti¬ 
tutional operation.’’ 


MONONGAHEDA NAVIGATION COMPANY v. UNITED 
STATES (1893) 148 U. S. 312, 324, 335-337, 341, 343, 13 Sup. Ct. 
622, 37 L. Ed. 463, Mr. Justice Bre^wkr (holding invalid a federal 
statute authorizing condemnation proceedings to acquire a lock 
and dam constructed by the Monongahela Company under a fran¬ 
chise from Pennsylvania to collect tolls for the use thereof, the 
statute expressly forbidding the payment of anything for said fran¬ 
chise) : 

“The question presented is not whether the United States has 
the power to condemn and appropriate this property of the Monon¬ 
gahela Company, for that is conceded, but how much it must pay 
as compensation therefor. Obviously this question, as all others, 
which run along the line of the extent of the protection the indi¬ 
vidual has under the Constitution against the demands of the gov¬ 
ernment, is of importance, for in any society the fullness and suf¬ 
ficiency of the securities which surround the individual in the use 



GENERAL PRINCIPLES 


95 


and enjoyment of his property constitute one of the most certain 
tests of the character and value of the government. The first 10 
amendments to the Constitution, adopted as they were soon after 
the adoption of the Constitution, are in the nature of a bill of 
rights, and were adopted in order to quiet the apprehension of many 
that without some such declaration of rights the government would 
assume, and might be held to possess, the power to trespass upon 
those rights of persons and property which by the Declaration of 
Independence were affirmed to be inalienable rights. * * * 

‘^Upon what does the right of Congress to interfere in the matter 
rest? Simply upon the power to regulate commerce. This is one 
of the great powers of the national government, one whose exist¬ 
ence and far-reaching extent have been affirmed again and again 
by this court. * * * 

“But, like the other powers granted to Congress by the Consti¬ 
tution, the power to regulate commerce is subject to all the limi¬ 
tations imposed by such instrument, and among them is that of 
the fifth amendment, we have heretofore quoted. Congress has su¬ 
preme control over the regulation of commerce, but if, in exercis¬ 
ing that supreme control, it deems it necessary to take private prop¬ 
erty, then it must proceed subject to the limitations imposed by 
this fifth amendment, and can take only on payment of just com¬ 
pensation. The power to regulate commerce is not given in any 
broader terms than that to establish post offices and post roads; 
but, if Congress wishes to take private property upon which to 
build a post office, it must either agree upon the price with the 
owner, or in condemnation pay just compensation therefor. And 
if that property be improved under authority of a charter granted 
by the state, with a franchise to take tolls for the use of the im¬ 
provement, in order to determine the just compensation such fran¬ 
chise must be taken into account. * jf ^ man’s house must 

be taken, that must be paid for; and, if the property is held and 
improved under a franchise from the state, with power to take 
tolls, that franchise must be paid for, because it is a substantial 
element in the value of the property taken. So, coming to the 
case before us, while the power of Congress to take this property 
is unquestionable, yet the power to take is subject to the consti¬ 
tutional limitation of just compensation. It should be noticed that 
here there is unquestionably a taking of the property, and not a 
mere destruction, ^ ^ * and * * * that, after taking this 

property, the government will have the right to exact the same 
tolls the navigation company has been receiving. It would seem 
strange that if, by asserting its right to take the property, the gov¬ 
ernment could strip it largely of its value, destroying all that value 
which comes from the receipt of tolls, and having taken the prop¬ 
erty at this reduced valuation, immediately possess and enjoy all 
the profits from the collection of the same tolls. * * * 


96 


POWERS OF CONGRESS 


“The theory of the government seems to be that the right of the 
navigation company to have its property in the river, and the 
franchises given by the state to take tolls for the use thereof, are 
conditional only, and that whenever the government, in the exer¬ 
cise of its supreme power, assumes control of the river, it destroys 
both the right of the company to have its property there and the 
franchise to take tolls. But this is a misconception. The franchise 
is a vested right. The state has power to grant it. It may retake 
it, as it may take other private property, for public uses, upon the 
payment of just compensation. A like, though a superior, power 
exists in the national government. It may take it for public pur¬ 
poses, and take it even against the will of the state; but it can no 
more take the franchise which the state has given than it can any 
private property belonging to an individual. ^ ^ 

“It is also suggested that the government does not take this 
franchise; that it does not need any authority from the state for 
the exaction of tolls, if it desires to exact them; that it only ap¬ 
propriates the tangible property, and then either makes the use of 
it free to all, or exacts such tolls as it sees fit, or transfers the 
property to a new corporation of its own creation, with such a 
franchise to take tolls as it chooses to give. But this franchise goes 
with the property; and the navigation company, which owned it, 
is deprived of it. The government takes it away from the com¬ 
pany, whatever use it may make of it; and the question of just 
compensation is not determined by the value to the government 
which takes, but the value to the individual from whom the prop¬ 
erty is taken; and when by the taking of the tangible property 
the owner is actually deprived of the franchise to collect tolls, just 
compensation requires payment, not merely of the value of the 
tangible property itself, but also of that of the franchise of which 
he is deprived/' 


II. Various Enumerated Powers ® 


McCRAY V. UNITED STATES. 

(Supreme Court of the United States, 1904. 195 U. S. 27, 24 Sup. Ct. 769, 49 
L. Ed. 78, 1 Ann. Cas. 561.) 

[Error to the United States District Court for the Southern Dis¬ 
trict of Ohio. A federal statute (Act May 9, 1902, c. 784, 32 Stat. 
193 [U. S. Comp. St. Supp. 1911, p. 1339] amending Act Aug. 2, 
1886, c. 840, 24 Stat. 209 [U. S. Comp. St. 1901, p. 2228] ) imposed 
a tax of 10 cents a pound upon all oleomargarine artificially color- 

»For discussion of principles, see Black, Const. Law (3d Ed.) § 105. 




VARIOUS ENUMERATED POWERS 


97 


ed to resemble butter. The United States sued McCray for statu¬ 
tory penalties for his failure to pay this tax on certain oleomar¬ 
garine, and he alleged that said coloration was not unhealthful, 
that said tax was so high as to make it impossible to sell such 
oleomargarine in competition with butter, that there was no de¬ 
mand for uncolored oleomargarine, and that the result of said tax 
would be to destroy the oleomargarine industry. The govern¬ 
ment’s demurrer to this answer was sustained and judgment ren¬ 
dered thereon.] 

Mr. Justice White. * * * The summary which follows em¬ 
bodies the propositions contained in the assignments of error, and 
the substance of the elaborate argument by which those assign¬ 
ments are deemed to be sustained. Not denying the general power 
of Congress to impose excise taxes, and conceding that the acts in 
question, on their face, purport to levy taxes of that character, 
the propositions are these: 

(a) That the power of internal taxation which the Constitution 
confers on Congress is given to that body for the purpose of rais¬ 
ing, revenue, and that the tax on artificially colored oleomargarine 
is void because it is of such an onerous character as to make it 
manifest that the purpose of Congress in levying it was not to 
raise revenue, but to suppress the manufacture of the taxed article. 

(b) The power to regulate the manufacture and sale of oleo¬ 
margarine being solely reserved to the several states, it follows 
that the acts in question, enacted by Congress for the purpose of 
suppressing the manufacture and sale of oleomargarine, when 
artificially colored, are void, because usurping the reserved power 
of the states, and therefore exerting an authority not delegated to 
Congress by the Constitution. 

(c) Whilst it is true—so the argument proceeds—that Congress, 

in exerting the taxing power conferred upon it, may use all means 
appropriate to the exercise of such power, a tax which is fixed at 
such a high rate as to suppress the production of the article taxed 
is not a legitimate means to the lawful end, and is therefore be¬ 
yond the scope of the taxing power. * 45 * 

* As the burdens which the acts impose are so 
onerous and so unjust as to be confiscatory, the acts are void, be¬ 
cause they amount to a violation of those fundamental rights 
which it is the duty of every free government to protect. * * * 

\Ye * * * come, first, to ascertain how far, if at all, the 

motives or purposes of Congress are open to judicial inquiry in 
considering the power of that body to enact the laws in question. 
Having determined the question of our right to consider motive 
or purpose, we shall then approach the propositions relied on by 
the light of the correct rule on the subject of purpose or mo¬ 
tive. ^ * 

Hall Cases Const.L.—7 


98 


POWERS OF CONGRESS 


No instance is afforded from the foundation of the government 
where an act which was within a power conferred, was declared to 
be repugnant to the Constitution, because it appeared to the ju¬ 
dicial mind that the particular exertion of constitutional power 
was either unwise or unjust. ^ * 

It is, however, argued, if a lawful power may be exerted for an 
unlawful purpose, and thus, by abusing the power, it may be made 
to accomplish a result not intended by the Constitution, all limita¬ 
tions of power must disappear, and the grave function lodged in 
the judiciary, to confine all the departments within the authority 
conferred by the Constitution, will be of no avail. This, when re¬ 
duced to its last analysis, comes to this: that, because a particu¬ 
lar department of the government may exert its lawful powers 
with the object or motive of reaching an end not justified, there¬ 
fore it becomes the duty of the judiciary to restrain the exercise 
of a lawful power wherever it seems to the judicial mind that 
such lawful power has been abused. But this reduces itself to the 
contention that, under our constitutional system, the abuse by one 
department of the government of its lawful powers is to be cor¬ 
rected by the abuse of its powers by another department. 

The proposition, if sustained, would destroy all distinction be¬ 
tween the powers of the respective departments of the govern¬ 
ment. * * * It is, of course, true, as suggested, that if there 

be no authority in the judiciary to restrain a lawful exercise of 
power by another department of the government, where a wrong 
motive or purpose has impelled to the exertion of the power, that 
abuses of a power conferred may be temporarily effectual. The 
remedy for this, however, lies, not in the abuse by the judicial au¬ 
thority of its functions, but in the people, upon whom, after all, 
under our institutions, reliance must be placed for the correction 
of abuses committed in the exercise of a lawful power. * * 

The decisions of this court from the beginning lend no support 
whatever to the assumption that the judiciary may restrain the 
exercise of lawful power on the assumption that a wrongful pur¬ 
pose or motive has caused the power to be exerted. As we have 
previously said: from the beginning no case can be found an¬ 
nouncing such a doctrine, and, on the contrary, the doctrine of a 
number of cases is inconsistent with its existence. * ^ * 

In Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482, where a 
tax levied by Congress on the circulating notes of state banks was 
assailed on the ground that the tax was intended to destroy the 
circulation of such notes, and was, besides, the exercise of a power 
to tax a subject not conferred upon Congress, it was said, as to 
the first contention (p. 548, L. Ed. p. 487) : 'Tt is insisted, how¬ 
ever, that the tax in the case before us is excessive, and so exces¬ 
sive as to indicate a purpose on the part of Congress to destroy 
the franchise of the bank, and is, therefore, beyond the constitu- 


VARIOUS ENUMERATED POWERS 


99 


tional power of Congress. The first answer to this is that the ju¬ 
dicial cannot prescribe to the legislative department of the gov¬ 
ernment limitations upon the exercise of its acknowledged pow¬ 
ers. The power to tax may be exercised oppressively upon per¬ 
sons, but the responsibility of the legislature is not to the courts, 
but to the people by whom its members are elected. So, if a par¬ 
ticular tax bears heavily upon a corporation, or a class of corpora¬ 
tions, it cannot, for that reason only, be pronounced contrary to 
the Constitution.” ^ ^ ^ 

In Treat v. White, 181 U. S. 264, 45 L. Ed. 853, 21 Sup. Ct. 611, 
referring to a stamp duty levied by Congress, it was observed 
(p. 268, L. Ed. p. 855, Sup. Ct. p. 613) : ‘‘The power of Congress 
in this direction is unlimited. It does not come within the prov¬ 
ince of this court to consider why agreements to sell shall be sub¬ 
ject to the stamp duty, and agreements to buy not. It is enough 
that Congress, in this legislation, has imposed a stamp duty upon 
the one, and not upon the other.” 

In Patton v. Brady, 184 U. S. 608, 46 L. Ed. 713, 22 Sup. Ct. 
493, considering another stamp duty levied by Congress, it was 
again said (p. 623, L. Ed. p. 720, Sup. Ct. p. 499) : “That it is no 
part of the function of a court to inquire into the reasonableness 
of the excise, either as respects the amount, or the property upon 
which it is imposed.” 

It being thus demonstrated that the motive or purpose of Con¬ 
gress in adopting the acts in question may not be inquired into, 
we are brought to consider the contentions relied upon to show 
that the acts assailed were beyond the power of Congress, putting 
entirely out of view all considerations based upon purpose or mo¬ 
tive. 

1. Undoubtedly, in determining whether a particular act is with¬ 

in a granted power, its scope and effect is to be considered. Ap¬ 
plying this rule to the acts assailed, it is self-evident that on their 
face they levy an excise tax. That being their necessary scope 
and operation, it follows that the acts are within the grant of 
power. The argument to the contrary rests on the proposition 
that, although the tax be within the power, as enforcing it will 
destroy or restrict the manufacture of artificially colored oleomar¬ 
garine, therefore the power to levy the tax did not obtain. This, 
however, is but to say that the question of power depends, not 
upon the authority conferred by the Constitution, but upon what 
may be the consequence arising from the exercise of the lawful 
authority. * * * The proposition now relied upon was urged 

in Knowlton v. Moore, 178 U. S. 41, 44 E. Ed. 969, 20 Sup. Ct. 747, 
and was overruled. * * 

2. The proposition that where a tax is imposed which is within 
the grant of powers, and which does not conflict with any express 
constitutional limitation, the courts may hold the tax to be void 


100 


POWERS OP CONGRESS 


because it is deemed that the tax is too high, is absolutely dis¬ 
posed of by the opinions in the cases hitherto cited. * * * 

4. Lastly we come to consider the argument that, even though 
as a general rule a tax of the nature of the one in question would 
be within the power of Congress, in this case the tax should be 
held not to be within such power, because of its effect. This is 
based on the contention that, as the tax is so large as to destroy 
the business of manufacturing oleomargarine artificially colored 
to look like butter, it thus deprives the manufacturers of that ar¬ 
ticle of their freedom to engage in a lawful pursuit, and hence, ir¬ 
respective of the distribution of powers made by the Constitution, 
the taxing laws are void, because they violate those fundamental 
rights which it is the duty of every free government to safeguard, 
and which, therefore, should be held to be embraced by implied, 
though none the less potential, guaranties, or, in any event, to be 
within the protection of the due process clause of the fifth amend¬ 
ment. 

Let us concede, for the sake of argument only, the premise of 
fact upon which the proposition is based. Moreover, concede, for 
the sake of argument only, that even although a particular exer¬ 
tion of power by Congress was not restrained by any express 
limitation of the Constitution, if, by the perverted exercise of such 
power, so great an abuse was manifested as to destroy funda¬ 
mental rights which no free government could consistently vio¬ 
late, that it would be the duty of the judiciary to hold such acts to 
be void upon the assumption that the Constitution, by necessary 
implication, forbade them. 

Such concession, however, is not controlling in this case. This 
follows when the nature of oleomargarine, artificially colored to 
look like butter, is recalled. As we have said, it has been conclu¬ 
sively settled by this court that the tendency of that article to de¬ 
ceive the public into buying it for butter is such that the states 
may, in the exertion of their police powers, without violating the 
due process clause of the fourteenth amendment, absolutely pro¬ 
hibit the manufacture of the article. It hence results, that even 
although it be true that the effect of the tax in question is to re¬ 
press the manufacture of artificially colored oleomargarine, it can¬ 
not be said that such repression destroys rights which no free 
government could destroy, and, therefore, no ground exists to sus¬ 
tain the proposition that the judiciary may invoke an implied 
prohibition, upon the theory that to do so is essential to save such 
rights from destruction. And the same considerations dispose of 
the contention based upon the due process clause of the fifth 
amendment. That provision, as we have previously said, does not 
withdraw or expressly limit the grant of power to tax conferred 
upon Congress by the Constitution. From this it follows, as we 
have also previously declared, that the judiciary is without author- 


VARIOUS ENUMERATED POWERS 


101 


ity to avoid an act of Congress exerting the taxing power, even in 
a case where, to the judicial mind, it seems that Congress had, in 
putting such power in motion, abused its lawful authority by levy¬ 
ing a tax which was unwise or oppressive, or the result of the 
enforcement of which might be to indirectly affect subjects not 
within the powers delegated to Congress. * * jk 

Judgment affirmed. 

[FurIvKR, C. J., and Brown and Pejckham, JJ., dissented.] 


FLINT V. STONE TRACY CO. (1911) 220 U. S. 107, 147-152, 
31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312, Mr. Justice 
Day (upholding a federal excise tax, equivalent to 1 per cent, of its 
net income above $5,000, levied upon the doing of business in the 
United States by any corporation or joint stock company) : 

“We proceed to consider whether * * * the statute is con¬ 

stitutional. 

“It is contended that it is not; certainly so far as the tax is 
measured by the income of bonds nontaxable under federal stat¬ 
utes, and municipal and state bonds beyond the federal power of 
taxation. And so of real and personal estates, because as to such 
estates the tax is direct, and required to be apportioned according 
to population among the states. It is insisted that such must be 
the holding unless this court is prepared to reverse the income 
tax cases decided under the act of 1894. [28 Stat. at L. 509, chap. 

349.] Pollock V. Farmers’ Loan & T. Co., 157 U. S. 429, 39 L. Ed. 
759, 15 Sup. Ct. 673, s. c. 158 U. S. 601, 39 L. Ed. 1108, 15 Sup. Ct. 
912. 

“The applicable provisions of the Constitution of the United 
States in this connection are found in article 1, § 8, clause 1, and 
in article 1, § 2, clause 3, and article 1, § 9, clause 4. They are re¬ 
spectively : 

“ ‘The Congress shall have power to lay and collect taxes, du¬ 
ties, imposts, and excises, to pay the debts and provide for the 
common defense and general welfare of the United States; but 
all duties, imposts, and excises shall be uniform throughout the 
United States.’ 

“ ‘Representatives and direct taxes shall be apportioned among 
the several states which may be included within this Union, ac¬ 
cording to their respective numbers.’ 

“ ‘No capitation or other direct tax shall be laid, unless in pro¬ 
portion to the census or enumeration hereinbefore directed to be 
taken.’ 

“It was under the latter requirement as to apportionment of di¬ 
rect taxes according to population that this court in the Pollock 



102 


POWERS OF CONGRESS 


Case held the statute of 1894 to be unconstitutional. Upon the 
rehearing of the case Mr. Chief Justice Fuller, who spoke for the 
court, summarizing the effect of the decision, said: ^We have con¬ 
sidered the act only in respect of the tax on income derived from 
real estate, and from invested personal property, and have not 
commented on so much of it as bears on gains or profits from 
business, privileges, or employments, in view of the instances in 
which taxation on business, privileges, or employments has as¬ 
sumed the'guise of an excise tax and been sustained as such.’ 158 
U. S. 635. 

“And as to excise taxes, the chief justice said: AVe do not 
mean to say that an act laying by apportionment a direct tax on 
all real estate and personal property, or the income thereof, might 
not also lay excise taxes on business, privileges, employments, and 
vocations.” (Page 637.) 

“The Pollock Case was before this court in Knowlton v. Moore, 
178 U. S. 41, 44 L. Ed. 969, 20 Sup. Ct. 747. In that case this 
court sustained an excise tax upon the transmission of property 
by inheritance. It was contended there, as here, that the case 
was ruled by the Pollock Case, and of that case this court, speak¬ 
ing by the present chief justice, said: 

“ ‘The issue presented in the Pollock Case was whether an in¬ 
come tax was direct within the meaning of the Constitution. The 
contentions which the case involved were thus presented. On the 
one hand, it was argued that only capitation taxes and taxes on 
land as such were direct, within the meaning of the Constitution, 
considered as a matter of first impression, and that previous ad¬ 
judications had construed the Constitution as having that import. 
On the other hand, it was asserted that, in principle, direct taxes, 
in the constitutional sense, embraced not only taxes on land and 
capitation taxes, but all burdens laid on real or personal property 
because of its ownership, which were equivalent to a direct tax on 
such property, and it was affirmed that the previous adjudications 
of this court had settled nothing to the contrary. 

“ ‘Undoubtedly, in the course of the opinion in the Pollock Case, 
it was said that if a tax was direct within the constitutional sense, 
the mere erroneous qualification of it as an excise or duty would 
not take it out of the constitutional requirement as to apportion¬ 
ment. But this language related to the subject-matter under con¬ 
sideration, and was but a statement that a tax which was in itself 
direct, because imposed upon property solely by reason of its 
ownership, could not be changed by affixing to it the qualification 
of excise or duty. Here we are asked to decide that a tax is a 
direct tax on property which has at all times been considered as 
the antithesis of such a tax; that is, that it has ever been treated 


VARIOUS ENUMERATED POWERS 


103 


as a duty or excise, because of the particular occasion which gives 
rise to its levy. 

“ 'Considering that the constitutional rule of apportionment had 
its origin in the purpose to prevent taxes on persons solely be¬ 
cause of their general ownership of property from being levied by 
any other rule than that of apportionment, two things were de¬ 
cided by the court: First, that no sound distinction existed be¬ 
tween a tax levied on a person solely because of his general own¬ 
ership of real property, and the same tax imposed solely because 
of his general ownership of personal property. Secondly, that the 
tax on the income derived from such property, real or personal, 
was the legal equivalent of a direct tax on the property from 
which said income was derived, and hence must be apportioned. 
These conclusions, however, lend no support to the contention 
that it was decided that duties, imposts, and excises, which are 
not the essential equivalent of a tax on property generally, real 
or personal, solely because of its ownership, must be converted 
into direct taxes, because it is conceived that it would be demon¬ 
strated by a close analysis that they could not be shifted from 
the person upon whom they first fall.' 

“The same view was taken of the Pollock Case in the subse¬ 
quent case of Spreckels Sugar Ref. Co. v. McClain [192 U. S. 397, 
24 Sup. Ct. 376, 48 T. Ed. 496.] 

“The act now under consideration does not impose direct taxa¬ 
tion upon property solely because of its ownership, but the tax is 
within the class which Congress is authorized to lay and collect 
under article 1, ,§ 8, clause 1 of the Constitution, and described 
generally as taxes, duties, imposts, and excises, upon which the 
limitation is that they shall be uniform throughout the United 
States. 

“Within the category of indirect taxation, as we shall have fur¬ 
ther occasion to show, is embraced a tax upon business done in a 
corporate capacity, wdiich is the subject-matter of the tax imposed 
in the act under consideration. The Pollock Case construed the 
tax there levied as direct, because it was imposed upon property 
simply because of its ownership. In the present case the tax is 
not payable unless there be a carrying on or doing of business in 
the designated capacity, and this is made the occasion for the tax, 
measured by the standard prescribed. The difference between 
the acts is not merely nominal, but rests upon substantial differ¬ 
ences between the mere ownership of property and the actual 
doing of business in a certain way. 

“It is unnecessary to enter upon an extended consideration of 
the technical meaning of the term 'excise.' It has been the sub¬ 
ject-matter of considerable discussion,—the terms duties, imposts, 
and excises are generally treated as embracing the indirect forms 


104 


POWERS OF CONGRESS 


of taxation contemplated by the Constitution. As Mr. Chief Jus¬ 
tice Fuller said in the Pollock Case, supra: ‘Although there have 
been from time to time intimations that there might be some tax 
which was not a direct tax nor included under the words “duties, 
imposts, and excises,” such a tax for more than one hundred years 
of national existence has as yet remained undiscovered, notwith¬ 
standing the stress of particular circumstances has invited thor¬ 
ough investigation into sources of revenue.’ [157 U. S. 557.] 

“And in the same connection the chief justice, delivering the 
opinion of the court in Thomas v. United States, 192 U. S. 363, 
48 L. Ed. 481, 24 Sup. Ct. 305, in speaking of the words ‘duties,’ 
‘imposts,’ and ‘excises,’ said; ‘We think that they were used com¬ 
prehensively, to cover customs and excise duties imposed on 
importation, consumption, manufacture, and sale of certain com¬ 
modities, privileges, particular business transactions, vocations, 
occupations, and the like.’ 

“Duties and imposts are terms commonly applied to levies made 
by governments on the importation or exportation of commodi¬ 
ties. Excises are ‘taxes laid upon the manufacture, sale, or con¬ 
sumption of commodities within the country, upon licenses to 
pursue certain occupations, and upon corporate privileges.’ Cool¬ 
ey, Const. Lim. (7th Ed.) 680. 

“The tax under consideration, as we have construed the statute, 
may be described as an excise upon the particular privilege of 
doing business in a corporate capacity, i. e., with the advantages 
which arise from corporate or quasi corporate organization; or, 
when applied to insurance companies, for doing the business of 
such companies. As was said in the Thomas Case, 192 U. S. 
supra, the requirement to pay such taxes involves the exercise of 
privileges, and the element of absolute and unavoidable demand 
is lacking. If business is not done in the manner described in the 
statute, no tax is payable. 

“If we are correct in holding that this is an excise tax, there is 
nothing in the Constitution requiring such taxes to be apportioned 
according to population. Pacific Ins. Co. v. Soule, 7 Wall. 433, 19 
L. Ed. 95; Springer v. United States, 102 U. S. 586, 26 L. Ed. 253; 
Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 397, 48 L. Ed. 496, 
24 Sup. Ct. 376.” 


VARIOUS ENUMERATED POWERS 


105 


In re RAPIER. 

(Supreme Court of the United States, 1892. 143 U. S. 110, 12 Sup. Ct. 374, 

36 L. Ed. 93.) 

[Petitions for habeas corpus for discharge from arrest under 
indictments charging the mailing of a newspaper and a letter in 
violation of the federal Anti-Lottery Act (Act Cong. Sept. 19, 
1890, c. 908, 26 Stat. 465 [U. S. Comp. St. 1901, p. 2659]), which 
forbade the mailing, carriage, or delivery by mail of any matter 
concerning lotteries.] 

Mr. Chief Justice Furre^r. * ^ * The question for deter¬ 

mination relates to the constitutionality of section 3894 of the 
Revised Statutes as amended by [26 Stat. 465, c. 908]. In Ex 
parte Jackson, 96 U. S. 727, 24 L. Ed. 877, it was held that the 
power vested in Congress to establish post-offices and post-roads 
embraced the regulation of the entire postal system of the coun¬ 
try, and that under it' Congress may designate what may be car¬ 
ried in the mail and what excluded; that in excluding various ar¬ 
ticles from the mails the object of Congress is not to interfere with 
the freedom of the press or with any other rights of the people, 
but to refuse the facilities for the distribution of matter deemed 
injurious by Congress to the public morals; and that the trans¬ 
portation in any other way of matters excluded from the mails 
would not be forbidden. Unless we are prepared to overrule that 
decision, it is decisive of the question before us. 

It is argued that in Jackson’s Case it was not urged that Con¬ 
gress had no power to exclude lottery matter from the mails; but 
it is conceded that the point of want of power was passed upon 
in the opinion. This was necessarily so, for the real question was 
the existence of the power, and not the defective Exercise of it. 
And it is a mistake to suppose that the conclusion there expressed 
was arrived at without deliberate consideration. It is insisted that 
the express powers of Congress are limited in their exercise to 
the objects for which they were intrusted, and that, in order to 
justify Congress in exercising any incidental or implied powers to 
carry into effect its express authority, it must appear that there 
is some relation between the means employed and the legitimate 
end. This is true; but, while the legitimate end of the exercise of 
the power in question is to furnish mail facilities for the people 
of the United States, it is also true that mail facilities are not re¬ 
quired to be furnished for every purpose. 

The states, before the Union was formed, could establish post- 
offices and post-roads, and in doing so could bring into play the 
police power in the protection of their citizens from the use of the 
means so provided for purposes supposed to exert a demoralizing 
influence upon the people. When the power to establish post- 


106 


POWERS OF CONGRESS 


offices and post-roads was surrendered to the Congress, it was as 
a complete power; and the grant carried with it the right to ex¬ 
ercise all the powers which made that power effective. It is not 
necessary that Congress should have the power to deal with crime 
or immorality within the states in order to maintain that it pos¬ 
sesses the power to forbid the use of the mails in aid of the perpe¬ 
tration of crime or immorality. 

The argument that there is a distinction between mala prohibita 
and mala in se, and that Congress might forbid the use of the 
mails in promotion of such acts as are universally regarded as 
mala in se, including all such crimes as murder, arson, burglary, 
etc., and the offense of circulating obscene books and papers, but 
cannot do so in respect of other matters which it might regard as 
criminal or immoral, but which it has no power itself to prohibit, 
involves a concession which is fatal to the contention of petition¬ 
ers, since it would be for Congress to determine what are within 
and what without the rule; but we think there is no room for 
such a distinction here, and that it must be left to Congress, in the 
exercise of a sound discretion, to determine in what manner it 
will exercise the power it undoubtedly possesses. 

We cannot regard the right to operate a lottery as a fundamen¬ 
tal right infringed by the legislation in question; nor are we able 
to see that Congress can be held, in its enactment, to have abridg¬ 
ed the freedom of the press. The circulation of newspapers is not 
prohibited, but the government declines itself to become an agent 
in the circulation of printed matter which it regards as injurious to 
the people. The freedom of communication is not abridged, with¬ 
in the intent and meaning of the constitutional provision, unless 
Congress is absolutely destitute of any discretion as to what shall 
or shall not be carried in the mails, and compelled arbitrarily to 
assist in the dissemination of matters condemned by its judgment 
through the governmental agencies which it controls. That pow¬ 
er may be abused furnishes no ground for a denial of its existence, 
if government is to be maintained at all. * * * 

Writs denied. 


UNITED STATES v. GETTYSBURG ELECTRIC RY. CO. 
(1896) 160 U. S. 668, 681-683, 16 Sup. Ct. 427, 40 L. Ed. 576, Mr. 
Justice Pejckham (upholding an act of Congress authorizing the 
taking by eminent domain of the battlefield of Gettysburg in the 
state of Pennsylvania) : 

“In our judgment, the government has the constitutional power 
to condemn the land for the proposed use. It is, of course, not 
necessary that the power of condemnation for such purpose be 
expressly given by the Constitution. The right to condemn at all 
is not so given. It results from the powers that are given, and it 



VARIOUS ENUMERATED POWERS 


107 


is implied because of its necessity, or because it is appropriate in 
exercising those powers. Congress has power to declare war, and 
to create and equip armies and navies. It has the great power of 
taxation, to be exercised for the common defense and general wel¬ 
fare. Having such powers, it has such other and implied ones as 
are necessary and appropriate for the purpose of carrying the 
powers expressly given into effect. Any act of Congress which 
plainly and directly tends to enhance the respect and love of the 
citizen for the institutions of his country, and to quicken and 
strengthen his motives to defend them, and which is germane to, 
and intimately connected with, and appropriate to, the exercise 
of some one or all of the powers granted by Congress, must be 
valid. This proposed use comes within such description. The 
provision comes within the rule laid down by Chief Justice Mar¬ 
shall in McCulloch v. Maryland, 4 Wheat. 421, 4 L. Ed. 579, in 
these words: Xet the end be legitimate, let it be within the scope 
of the Constitution, and all means which are appropriate, which 
are plainly adequate to that end, which are not prohibited but 
consistent with the letter and spirit of the Constitution, are con¬ 
stitutional.’ 

“The end to be attained, by this proposed use, as provided for 
by the act of Congress, is legitimate, and lies within the scope of 
the Constitution. The battle of Gettysburg was one of the great 
battles of the world. The numbers contained in the opposing 
armies were great; the sacrifice of life was dreadful; while the 
bravery, and, indeed, heroism, displayed by both the contending 
forces, rank with the highest exhibition of those qualities ever 
made by man. The importance of the issue involved in the contest 
of which this great battle was a part cannot be overestimated. 
The existence of the government itself, and the perpetuity of our 
institutions, depended upon the result. Valuable lessons in the 
art of war can now be learned from an examination of this great 
battlefield, in connection with the history of the events which 
there took place. Can it be that the government is without power 
to preserve the land, and properly mark out the various sites upon 
which this struggle took place? Can it not erect the monuments 
provided for by these acts of Congress, or even take possession 
of the field of battle, in the name and for the benefit of all the 
citizens of the country, for the present and for the future? Such a 
use seems necessarily not only a public use, but one so closely con¬ 
nected with the welfare of the republic itself as to be within the 
powers granted Congress by the Constitution for the purpose of 
protecting and preserving the whole country. It would be a great 
object lesson to all who looked upon the land thus cared for, and 
it would show a proper recognition of the great things that were 
done there on those momentous days. By this use the govern¬ 
ment manifests for the benefit of all its citizens the value put upon 


108 


POWERS OP CONGRESS 


th6 services and exertions of the citizen soldiers of that period. 
Their successful effort to preserve the integrity and solidarity of 
the great republic of modern times is forcibly impressed upon 
every one who looks over the field. The value of the sacrifices 
then freely made is rendered plainer and more durable by the fact 
that the government of the United States, through its representa¬ 
tives in Congress assembled, appreciates and endeavors to per¬ 
petuate it by this most suitable recognition. Such action on the 
part of Congress touches the heart, and comes home to the imagi¬ 
nation of every citizen, and greatly tends to enhance his love and 
respect for those institutions for which these heroic sacrifices 
were made. The greater the love of the citizen for the institu¬ 
tions of his country, the greater is the dependence properly to be 
placed upon him for their defense in time of necessity, and it is 
to such men that the country must look for its safety. The insti¬ 
tutions of our country, which were saved at this enormous ex¬ 
penditure of life and property, ought to and will be regarded with 
proportionate affection. Here upon this battlefield is one of the 
proofs of that expenditure, and the sacrifices are rendered more 
obvious and more easily appreciated when such a battlefield is 
preserved by the government at the public expense. The right 
to take land for cemeteries for the burial of the deceased soldiers 
of the country rests on the same footing, and is connected with, 
and springs from, the same powers of the Constitution. It seems 
very clear that the government has the right to bury its own sol¬ 
diers, and to see to it that their graves shall not remain unknown 
or unhonored. 

“No narrow view of the character of this proposed use should 
be taken. Its national character and importance, we think, are 
plain. The power to condemn for this purpose need not be plainly 
and unmistakably deduced from any one of the particularly spec¬ 
ified powers. Any number of those powers may be grouped to¬ 
gether, and an inference from them all may be drawn that the 
power claimed has been conferred.** 


COMMERCIAL POWERS 


109 


III. Commercial Powers* 


GIBBONS V. OGDEN. 

(Supreme Court of United States, 1824. 9 Wheat. 1, 6 L. Ed. 23.) 

[Error to the Court for Trial of Impeachments and Correction of 
Errors of New York. A New York statute granted to Livingston 
and Fulton the exclusive right to navigate the waters of the state 
by steamboats for a period of years, and by assignment Ogden se¬ 
cured the right to navigate between New York City and places in 
New Jersey. Ogden secured an injunction in the state court 
against the violation of this right by Gibbons, who was using, in 
navigation between New York and New Jersey, two steamboats 
enrolled and licensed in the coasting trade under the act of Con¬ 
gress of 1793 (1 Stat. 305, c. 8). From an affirmance of this decree 
the case was brought here.] 

Mr. Chief Justice Marshall. The appellant contends that this 
decree is erroneous, because the laws which purport to give the ex¬ 
clusive privilege it sustains are repugnant to the Constitution and 
laws of the United States. * * 'I'he words are: “Congress 

shall have power to regulate commerce with foreign nations, and 
among the several states, and with the Indian tribes.'’ The subject 
to be regulated is commerce; and our Constitution being, as was 
aptly said at the bar, one of enumeration, and not of definition, to 
ascertain the extent of the power, it becomes necessary to settle the 
meaning of the word. . The counsel for the appellee would limit it to 
traffic, to buying and selling, or the interchange of commodities, and 
do not admit that it comprehends navigation. This would restrict 
a general term, applicable to many objects, to one of its significa¬ 
tions. Commerce, undoubtedly, is traffic, but it is something more, 
—it is intercourse. It describes the commercial intercourse be¬ 
tween nations, and parts of nations, in all its branches, and is regu¬ 
lated by prescribing rules for carrying on that intercourse. The 
mind can scarcely conceive a system for regulating commerce be¬ 
tween nations which shall exclude all laws concerning navigation, 
which shall be silent on the admission of the vessels of the one 
nation into the ports of the other, and be confined to prescribing 
rules for the conduct of individuals, in the actual employment of 
buying and selling, or of barter. 

If commerce does not include navigation, the government of the 
Union has no direct power over that subject, and can make no law 
prescribing what shall constitute American vessels, or requiring 

7 For discussion of principles, see Black, Const. I>aw (3d Ed.) § 105. 



110 


POWERS OF CONGRESS 


that they shall be navigated by American seamen. Yet this power 
has been exercised from the commencement of the government, 
has been exercised with the consent of all, and has been understood 
by all to be a commercial regulation. All America understands, 
and has uniformly understood, the word “commerce” to compre¬ 
hend navigation. It was so understood, and must have been so 
understood, when the Constitution was framed. The power over 
commerce, including navigation, was one of the primary objects for 
which the people of America adopted their government, and must 
have been contemplated in forming it. The convention must have 
used the word in that sense, because all have understood it in that 
sense; and the attempt to restrict it comes too late. 

If the opinion that “commerce,” as the word is used in the Consti¬ 
tution, comprehends navigation also, requires any additional con¬ 
firmation, that additional confirmation is, we think, furnished by 
the words of the instrument itself. It is a rule of construction ac¬ 
knowledged by all, that the exceptions from a power mark its ex¬ 
tent; for it would be absurd, as well as useless, to except from a 
granted power that which was not granted,—that which the words 
of the grant could not comprehend. If, then, there are in the Con¬ 
stitution plain exceptions from the power over navigation, plain 
inhibitions to the exercise of that power in a particular way, it is a 
proof that those who made these exceptions, and prescribed these 
inhibitions, understood the power to which they applied as being 
granted. 

The 9th section of the 1st article declares that “no preference 
shall be given, by any regulation of commerce or revenue, to the 
ports of one state over those of another.” This clause cannot be un¬ 
derstood as applicable to those laws only which are passed for the 
purposes of revenue, because it is expressly applied to commercial 
regulations; and the most obvious preference which can be given 
to one port over another, in regulating commerce, relates to navi¬ 
gation. But the subsequent part of the sentence is still more ex¬ 
plicit. It is, “nor shall vessels bound to or from one state, be 
obliged to enter, clear, or pay duties in another.” These words 
have a direct reference to navigation. 

The universally acknowledged power of the government to im¬ 
pose embargoes must also be considered as showing that all Amer¬ 
ica is united in that construction which comprehends navigation 
in the word “commerce.” Gentlemen have said, in argument, that 
this is a branch of the war-making power, and that an embargo is 
an instrument of war, not a regulation of trade. That it may be, 
and often is, used as an instrument of war, cannot be denied. An 
embargo may be imposed for the purpose of facilitating the equip¬ 
ment or manning of a fleet, or for the purpose of concealing the 
progress of an expedition preparing to sail from a particular port. 


COMMERCIAL POWERS 


111 


In these, and in similar cases, it is a military instrument, and par¬ 
takes of the nature of war. But all embargoes are not of this de¬ 
scription. They are sometimes resorted to without a view to war, 
and with a single view to commerce. In such case an embargo is 
no more a war measure than a merchantman is a ship of war, be¬ 
cause both are vessels which navigate the ocean with sails and 
seamen. * * ^ 

The word used in the Constitution, then, comprehends, and has 
been always understood to comprehend, navigation within its mean¬ 
ing ; and a power to regulate navigation is as expressly granted as 
if that term had been added to the word “commerce.” 

To what commerce does this power extend? The Constitution 
informs us, to commerce “with foreign nations, and among the sev¬ 
eral states, and with the Indian tribes.” It has, we believe, been 
universally admitted that these words comprehend every species 
of commercial intercourse between the United States and foreign 
nations. No sort of trade can be carried on between this country 
and any other to which this power does not extend. It has been 
truly said that commerce, as the word is used in the Constitution, 
is a unit, every part of which is indicated by the term. If this be 
the admitted meaning of the word, in its application to foreign na¬ 
tions, it must carry the same meaning throughout the sentence, and 
remain a unit, unless there be some plain intelligible cause which 
alters it. 

The subject to which the power is next applied is to commerce 
“among the several States.” The word “among” means inter¬ 
mingled with. A thing which is among others is intermingled with 
them. Commerce among the states cannot stop at the external 
boundary-line of each state, but may be introduced into the in¬ 
terior. It is not intended to say that these words comprehend that 
commerce which is completely internal, which is carried on be¬ 
tween man and man in a state, or between different parts of the 
same state, and which does not extend to or affect other states. 
Such a power would be inconvenient and is certainly unnecessary. 

Comprehensive as the word “among” is, it may very properly be 
restricted to that commerce which concerns more states than one. 
The phrase is not one which would probably have been selected to 
indicate the completely interior traffic of a state, because it is not 
an apt phrase for that purpose; and the enumeration of the par¬ 
ticular classes of commerce to which the power was to be extended 
would not have been made had the intention been to extend the 
power to every description. The enumeration presupposes some¬ 
thing not enumerated; and that something, if we regard the lan¬ 
guage or the subject of the sentence, must be the exclusively inter¬ 
nal commerce of a state. The genius and character of the whole 
government seem to be, that its action is to be applied to all the 


112 


POWERS OF CONGRESS 


external concerns of the nation, and to those internal concerns 
which affect the states generally; but not to those which are com¬ 
pletely within a particular state, which do not affect other states, 
and with which it is not necessary to interfere for the purpose of 
executing some of the general powers of the government. The 
completely internal commerce of a state, then, may be considered 
as reserved for the state itself. 

But, in regulating commerce with foreign nations, the power of 
Congress does not stop at the jurisdictional lines of the several 
states. It would be a very useless power if it could not pass those 
lines. The commerce of the United States with foreign nations is 
that of the whole United States. Every district has a right to par¬ 
ticipate in it. The deep streams which penetrate our country in 
every direction pass through the interior of almost every state in 
the Union, and furnish the means of exercising this right. If Con¬ 
gress has the power to regulate it, that power must be exercised 
whenever the subject exists. If it exists within the states, if a for¬ 
eign voyage may commence or terminate at a port within a state, 
then the power of Congress may be exercised within a state. 

This principle is, if possible, still more clear when applied to com¬ 
merce “among the several states.” They either join each other, in 
which case they are separated by a mathematical line, or they are 
remote from each other, in which case other states lie between 

them. What is commerce “among” them; and how is it to be con¬ 
ducted? Can a trading expedition between two adjoining states 
commence and terminate outside of each? And if the trading in¬ 
tercourse be between two states remote from each other, must it 
not commence in one, terminate in the other, and probably pass 
through a third? Commerce among the states must, of necessity, 
be commerce with the states. In the regulation of trade with the 
Indian tribes, the action of the law, especially when the Constitu¬ 
tion was made, was chiefly within a state. The power of Congress, 

then, whatever it may be, must be exercised within the territorial 
jurisdiction of the several states. The sense of the nation on this 
subject is unequivocally manifested by the provisions made in the 
laws for transporting goods by land between [Boston] and Provi¬ 
dence, between New York and Philadelphia, and between Phila¬ 
delphia and Baltimore. 

We are now arrived at the inquiry. What is this power? It is the 
power to regulate; that is, to prescribe the rule by which commerce 
is to be governed. This power, like all others vested in Congress, 
is complete in itself, may be exercised to its utmost extent, and 
acknowledges no limitations other than are prescribed in the Con¬ 
stitution. These are expressed in plain terms, and do not affect 
the questions which arise in this case, or which have been discussed 
at the bar. If, as has always been understood, the sovereignty of 


COMMERCIAL POWERS 


113 


Congress, though limited to specified objects, is plenary as to those 
objects, the power over commerce with foreign nations, and among 
the several states, is vested in Congress as absolutely as it would 
be in a single government, having in its constitution the same re¬ 
strictions on the exercise of the power as are found in the Constitu¬ 
tion of the United States. * * * power of Congress, then, 

comprehends navigation within the limits of every state in the Un¬ 
ion, so far as that navigation may be, in any manner, connected with 
‘'commerce with foreign nations, or among the several states, or with 
the Indian tribes.” It may, of consequence, pass the jurisdictional 
line of New York, and act upon the very waters to which the prohibi¬ 
tion now under consideration applies. 

But it has been urged with great earnestness that, although the 
power of Congress to regulate commerce with foreign nations, and 
among the several states, be coextensive with the subject itself, 
and have no other limits than are prescribed in the Constitution, 
yet the states may severally exercise the same power within their 
respective jurisdictions. In support of this argument, it is said 
that they possessed it as an inseparable attribute of sovereignty 
before the formation of the Constitution, and still retain it, except 
so far as they have surrendered it by that instrument; that this 
principle results from the nature of the government, and is secured 
by the tenth amendment; that an affirmative grant of power is not 
exclusive, unless in its own nature it be such that the continued 
exercise of it by the former possessor is inconsistent with the grant, 
and that this is not of that description. The appellant, conceding 
these postulates, except the last, contends that full power to regu¬ 
late a particular subject implies the whole power, and leaves no 
residuum; that a grant of the whole is incompatible with the ex¬ 
istence of a right in another to any part of it. Both parties have 
appealed to the Constitution, to legislative acts, and judicial deci¬ 
sions; and have drawn arguments from all these sources to sup¬ 
port and illustrate the propositions they respectively maintain. 

The grant of the power to lay and collect taxes is, like the power 
to regulate commerce, made in general terms, and has never been 
understood to interfere with the exercise of the same power by the 
states; and hence has been drawn an argument which has been 
applied to the question under consideration. But the two grants 
are not, it is conceived, similar in their terms or their nature. Al¬ 
though many of the powers formerly exercised by the states are 
transferred to the government of the Union, yet the state govern¬ 
ments remain, and constitute a most important part of our system. 
The power of taxation is indispensable to their existence, and is 
a power which, in its own nature, is capable of residing in, and 
being exercised by, different authorities at the same time. We are 
Hall Cases Const.L.—8 


114 


POWERS OF CONGRESS 


accustomed to see it placed, for dif¥erent purposes in different 
hands. Taxation is the simple operation of taking small portions 
from a perpetually accumulating mass, susceptible of almost in¬ 
finite division; and a power in one to take what is necessary for 
certain purposes, is not in its nature incompatible with a power in 
another to take what is necessary for other purposes. Congress 
is authorized to lay and collect taxes, etc., to pay the debts, and 
provide for the common defence and general welfare of the United 
States. This does not interfere with the power of the states to 
tax for the support of their own governments; nor is the exer¬ 
cise of that power by the states an exercise of any portion of the 
power that is granted to the United States. In imposing taxes for 
state purposes, they are not doing what Congress is empowered to 
do. Congress is not empowered to tax for those purposes which 
are within the exclusive province of the states. When, then, each 
government exercises the power of taxation, neither is exercising 
the power of the other. But when a state proceeds to regulate 
commerce with foreign nations, or among the several states, it is 
exercising the very power that is granted to Congress, and is doing 
the very thing which Congress is authorized to do. There is no 
analogy, then, between the power of taxation and the power of 
regulating commerce. 

In discussing the question whether this power is still in the 
states, in the case under consideration, we may dismiss from it 
the inquiry, whether it is surrendered by the mere grant to Con¬ 
gress, or is retained until Congress shall exercise the power. We 
may dismiss that inquiry because it has been exercised, and the 
regulations which Congress deemed it proper to make are now in 
full operation. The sole question is, can a state regulate commerce 
with foreign nations and among the states while Congress is regu¬ 
lating it? * * * 

But the inspection laws are said to be regulations of commerce, 
and are certainly recognized in the Constitution as being passed 
in the exercise of a power remaining with the states. That inspec¬ 
tion laws may have a remote and considerable influence on com¬ 
merce, will not be denied; but that a power to regulate commerce 
is the source from which the right to pass them is derived, cannot 
be admitted. The object of inspection laws is to improve the qual¬ 
ity of articles produced by the labor of a country, to fit them for 
exportation, or it may be for domestic use. They act upon the 
subject before it becomes an article of foreign commerce, or of 
commerce among the states, and prepare it for that purpose. They 
form a portion of that immense mass of legislation which embraces 
everything within the territory of a state not surrendered to a 
general government; all which can be most advantageously exer- 


COMMERCIAL POWERS 


115 


cised by the states themselves. Inspection laws, quarantine laws, 
health laws of every description, as well as laws for regulating the 
internal commerce of a state, and those which respect turnpike 
roads, ferries, etc., are component parts of this mass. 

No direct general power over these objects is granted to Con¬ 
gress, and consequently they remain subject to state legislation. 
If the legislative power of the Union can reach them it must be 
for national purposes; it must be where the power is expressly 
given for a special purpose, or is clearly incidental to some power 
which is expressly given. It is obvious that the government of 
the Union, in the exercise of its express powers,—that, for example, 
of regulating commerce with foreign nations and among the states, 
—may use means that may also be employed by a state in the exer¬ 
cise of its acknowledged powers; that, for example, of regulating 
commerce within the state. If Congress license vessels to sail from 
one port to another in the same state, the act is supposed to be 
necessarily incidental to the power expressly granted to Congress, 
and implies no claim of a direct power to regulate the purely in¬ 
ternal commerce of a state, or to act directly on its system of police. 
So if a state, in passing laws on subjects acknowledged to be with¬ 
in its control, and with a view to those subjects, shall adopt a meas¬ 
ure of the same character with one which Congress may adopt, it 
does not derive its authority from the particular power which has 
been granted, but from some other which remains with the state, 
and may be executed by the same means. All experience shows 
that the same measures, or measures scarcely distinguishable from 
each other, may flow from distinct powers; but this does not prove 
that the powers themselves are identical. Although the means 
used in their execution may sometimes approach each other so 
nearly as to be confounded, there are other situations in which they 
are sufficiently distinct to establish their individuality. 

In our complex system, presenting the rare and difficult scheme 
of one general government whose action extends over the whole, 
but which possesses only certain enumerated powers; and of nu¬ 
merous state governments, which retain and exercise all powers 
not delegated to the Union, contests respecting power must arise. 
Were it even otherwise, the measures taken by the respective gov¬ 
ernments to execute their acknowledged powers would often be of 
the same description, and might sometimes interfere. This, how¬ 
ever, does not prove that the one is exercising, or has a right to 
exercise, the powers of the other. * * * 

It has been contended by the counsel for the appellant that, as 
the word to “regulate” implies in its nature full power over the 
thing to be regulated, it excludes, necessarily, the action of all 
others that would perform the same operation on the same thing. 


116 


POWERS OF CONGRESS 


That regulation is designed for the entire result, applying to those 
parts which remain as they were, as well as to those which are 
altered. It produces a uniform whole, which is as much disturbed 
and deranged by changing what the regulating power designs to 
leave untouched, as that on which it has operated. There is great 
force in this argument, and the court is not satisfied that it has 
been refuted. * * * 

It has been said that the Constitution does not confer the right 
of intercourse between state and state. That right derives its 
source from those laws whose authority is acknowledged by civi¬ 
lized man throughout the world. This is true. The Constitution 
found it an existing right, and gave to Congress the power to regu¬ 
late it. In the exercise of this power. Congress has passed “An act 
for enrolling or licensing ships or vessels to be employed in the 
coasting trade and fisheries, and for regulating the same.” The 
counsel for the respondent contend that this act does not give the 
right to sail from port to port, but confines itself to regulating a 
pre-existing right, so far only as to confer certain privileges on en¬ 
rolled and licensed vessels in its exercise. It will at once occur that 
when a legislature attaches certain privileges and exemptions to the 
exercise of a right over which its control is absolute, the law must 
imply a power to exercise the right. The privileges are gone if 
the right itself be annihilated. * * * 

The fourth section directs the proper officer to grant to a vessel 
qualified to receive it, “a license for carrying on the coasting trade 
and prescribes its form. ^ ^ ^ 'phe word “license’^ means per¬ 

mission, or authority; and a license to do any particular thing is 
a permission or authority to do that thing; and if granted by a per¬ 
son having power to grant it, transfers to the grantee the right to 
do whatever it purports to authorize. It certainly transfers to him 
all the right which the grantor can transfer to do what is within the 
terms of the license. ^ ^ 

But if the license be a permit to carry on the coasting trade, the 
respondent denies that these boats were engaged in that trade, or 
that the decree under consideration has restrained them from prose¬ 
cuting it. The boats of the appellant were, we are told, employed 
in the transportation of passengers, and this is no part of that com¬ 
merce which Congress may regulate. If, as our whole course of 
legislation on this subject shows, the power of Congress has been 
universally understood in America to comprehend navigation, it is 
a very persuasive, if not a conclusive, argument to prove that the 
construction is correct; and if it be correct, no clear distinction 
is perceived between the power to regulate vessels employed in 
transporting men for hire, and property for hire. The subject is 
transferred to Congress, and no exception to the grant can be ad¬ 
mitted which is not proved by the words or the nature of the thing. 


COMMERCIAL POWERS 


117 


* * ^ [The law of New York was held to be inconsistent with 

the license granted by act of Congress.] 

Judgment reversed. 

[Johnson, J., concurred upon the ground that the power of Con¬ 
gress to regulate commerce was exclusive, and that the licensing 
act did not affect the case.] 


PAUL V. VIRGINIA (1869) 8 Wall. 168, 182-185, 19 L. Ed. 357, 
Mr. Justice FiKLD (upholding a Virginia statute requiring foreign 
fire insurance companies to take out licenses before doing business 
in the state) : 

“We proceed to the second objection urged to the validity of the 
Virginia statute, which is founded upon the commercial clause of 
the Constitution. It is undoubtedly true, as stated by counsel, that 
the power conferred upon Congress to regulate commerce includes 
as well commerce carried on by corporations as commerce carried 
on by individuals. * * * language of the grant makes no 

reference to the instrumentalities by which commerce may be car¬ 
ried on; it is general, and includes alike commerce by individuals, 
partnerships, associations, and corporations. 

“There is, therefore, nothing in the fact that the insurance com¬ 
panies of New York are corporations to impair the force of the 
argument of counsel. The defect of the argument lies in the char¬ 
acter of their business. Issuing a policy of insurance is not a trans¬ 
action of commerce. The policies are simple contracts of indemnity 
against loss by fire, entered into between the corporations and the 
assured, for a consideration paid by the latter. These contracts are 
not articles of commerce in any proper meaning of the word. They 
are not subjects of trade and barter offered in the market as some¬ 
thing having an existence and value independent of the parties to 
them. They are not commodities to be shipped or forwarded from 
one state to another, and then put up for sale. They are like other 
personal contracts between parties which are completed by their 
signature and the transfer of the consideration. Such contracts 
are not interstate transactions, though the parties may be domi¬ 
ciled in different states. The policies do not take effect—are not 
executed contracts—until delivered by the agent in Virginia. They 
are, then, local transactions, and are governed by the local law. 
They do not constitute a part of the commerce between the states 
any more than a contract for the purchase and sale of goods in 
Virginia by a citizen of New York whilst in Virginia would con¬ 
stitute a portion of such commerce. 

“In Nathan v. Louisiana, 8 How. 73 [12 L. Ed. 992], this court 
held that a law of that state imposing a tax on money and ex¬ 
change brokers, who dealt entirely in the purchase and sale of 



118 


POWERS OF CONGRESS 


foreign bills of exchange, was not in conflict with the constitutional 
power of Congress to regulate commerce. ‘The individual thus 
using his money and credit,^ said the court, ‘is not engaged in com¬ 
merce, but in supplying an instrument of commerce. He is less 
connected with it than the shipbuilder, without whose labor foreign 
commerce could not be carried on.’ And the opinion shows that, 
although instruments of commerce, they are the subjects of state 
regulation, and, inferentially, that they may be subjects of direct 
state taxation. ^ * 

“If foreign bills of exchange may thus be the subject of state 
regulation, much more so may contracts of insurance against loss 
by fire.” _ 


INTERNATIONAL TEXT-BOOK CO. v. PIGG (1910) 217 U. 
S. 91, 106, 107, 30 Sup. Ct. 481, 54 L. Ed. 678, 24 L. R. A. (N. S.) 
493, 18 Ann. Cas. 1103, Mr. Justice Harlan (holding invalid, as 
applied to plaintiff corporation, a Kansas statute forbidding foreign 
corporations to do business in the state until they had filed a de¬ 
tailed statement concerning their business and stockholders, and 
disabling foreign corporations doing business in the state from 
suing in the state courts until they had a certificate that this state¬ 
ment had been properly made. Plaintiff was a Pennsylvania cor¬ 
poration giving instruction by correspondence in Kansas, where it 
employed a permanent solicitor and collector, and its right to sue 
a defaulting student had been denied by the Kansas courts under 
this statute) : 

“It is true that the business in which the International Text- 
Book Company is engaged is of a somewhat exceptional character, 
but, in our judgment, it was, in its essential characteristics, com¬ 
merce among the states within the meaning of the Constitution of 
the United States. It involved, as already suggested, regular and 
practically continuous intercourse between the Text-Book Com¬ 
pany, located in Pennsylvania, and its scholars and agents in Kan¬ 
sas and other states. That intercourse was conducted by means of 
correspondence through the mails with such agents and scholars. 
While this mode of imparting and acquiring an education may not 
be such as is commonly adopted in this country, it is a lawful 
mode to accomplish the valuable purpose the parties have in view. 
More than that; this mode—^looking at the contracts between the 
Text-Book Company and its scholars—involved the transportation 
from the state where the school is located to the state in which the 
scholar resides, of books, apparatus, and papers, useful or neces¬ 
sary in the particular course of study the scholar in pursuing, and 
in respect of which he is entitled, from time to time, by virtue of 
his contract, to information and direction. Intercourse of that kind, 
between parties in different states,—particularly when it is in ex- 



COMMERCIAL POWERS; 119 

ecution of a valid contract between .them,—is as much intercourse 
in the constitutional sense, as intercourse by means of the tele¬ 
graph,—*a new species of commerce,’ to use the words of this 
court in Pensacola Teleg. Co. v. Western U. Teleg. Co., 96 U. S. 
1, 9, 24 L. Ed. 708, 710. In the great case of Gibbons v. Ogden, 
9 Wheat. 1, 189, 6 L. Ed. 23, 68, this court, speaking by Chief 
Justice Marshall, said: ‘Commerce, undoubtedly, is traffic; but it 
is something more; it is intercourse.’ Referring to the constitu¬ 
tional power of Congress to regulate commerce among the states 
and with foreign countries, this court said in the Pensacola Case, 
just cited, that ‘it is not only the right, but the duty, of Congress, 
to see to it that intercourse among the states and the transmission 
of intelligence are not obstructed or unnecessarily encumbered by 
state legislation.’ This principle has never been modified by any 
subsequent decision of this court. 

“The same thought was expressed in Western U. Teleg. Co. v. 
Pendleton, 122 U. S. 347, 356, 30 E. Ed. 1187, 1188, 1 Inters. Com. 
Rep. 306, 307, 7 Sup. Ct. Rep. 1126, 1127, where the court said: 
‘Other commerce deals only with persons, or with visible and tan¬ 
gible things. But the telegraph transports nothing visible and 
tangible; it carries only ideas, wishes, orders, and intelligence.’ 
It was said in the circuit court of appeals for the eighth circuit, 
speaking by Judge Sanborn, in Butler Bros. Shoe Co. v. United 
States Rubber Co., 84 C. C. A. 167, 183, 156 Fed. 1, 17, that ‘all 
interstate commerce is not sales of goods. Importation into one 
state.from another is the indispensable element, the test, of inter¬ 
state commerce; and every negotiation, contract, trade, and deal¬ 
ing between citizens of different states, which contemplates and 
causes such importation, whether it be of goods, persons, or in¬ 
formation, is a transaction of interstate commerce.’ If intercourse 
between persons in different states by means of telegraphic mes¬ 
sages conveying intelligence or information is commerce among 
the states, which no state may directly burden or unnecessarily 
encumber, we cannot doubt that intercourse or communication 
between persons in different states, by means of correspondence 
through the mails, is commerce among the states within the mean¬ 
ing of the Constitution, especially where, as here, such intercourse 
and communication really relate to matters of regular, continuous 
business, and to the making of contracts and the transportation of 
books, papers, etc., appertaining to such business. In our further 
consideration of this case, we shall therefore assume that the busi¬ 
ness of the Text-Book Company, by means of correspondence 
through the mails and otherwise between Kansas and Pennsyl¬ 
vania, was interstate in its nature.” 

[Moody, J., approved the decision. Fuli^ER, C. J., and McKen¬ 
na, J., dissented.] 


120 


POWERS OP CONGRESS 


COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 

(Supreme Court of United States, 1851. 12 How. 299, 13 L. Ed. 996.) 

[Error to the Supreme Court of Pennsylvania. A state statute 
required vessels with certain exceptions, to receive pilots for en¬ 
tering or leaving the port of Philadelphia, and those who did not 
were required to pay half-pilotage to the use of the Society for the 
Relief of Decayed Pilots. A suit against Cooley to recover such 
half-pilotage was decided for the plaintiff in the state courts.] 

Mr. Justice Curtis. * * * [After holding that the regulation 

did not impose duties on imports, exports, or tonnage, or give a 
preference to the ports of one state over those of another:] It re¬ 
mains to consider the objection that it is repugnant to the third 
clause of the eighth section of the first article: “The Congress shall 
have power to regulate commerce with foreign nations and among 
the several states, and with the Indian tribes."’ 

That the power to regulate commerce includes the regulation of 
navigation, we consider settled. And when we look to the nature 
of the service performed by pilots, to the relations which that serv¬ 
ice and its compensations bear to navigation between the several 
states, and between the ports of the United States and foreign 
countries, we are brought to the conclusion, that the regulation of 
the qualifications of pilots, of the modes and times of offering and 
rendering their services, of the responsibilities which shall rest 
upon them, of the powers they shall possess, of the compensation 
they may demand, and of the penalties by which their rights and 
duties may be enforced, do constitute regulations of navigation, and 
consequently of commerce, within the just meaning of this clause 
of the Constitution. 

The power to regulate navigation is the power to prescribe rules 
in conformity with which navigation must be carried on. It ex¬ 
tends to the persons who conduct it, as well as to the instruments 
used. Accordingly, the first Congress assembled under the Consti¬ 
tution passed laws, requiring the masters of ships and vessels of 
the United States to be citizens of the United States, and estab¬ 
lished many rules for the government and regulation of officers and 
seamen. 1 Stats, at Large, 55, 131. These have been from time 
to time added to and changed, and we are not aware that their 
validity has been questioned^ * hc * 

It becomes necessary, therefore, to consider whether this law of 
Pennsylvania, being a regulation of commerce, is valid. 

The act of Congress of the 7th of August, 1789, § 4, is as follows: 

“That all pilots in the bays, inlets, rivers, harbors, and ports of 
the United States shall continue to be regulated in conformity with 
the existing laws of the states, respectively, wherein such pilots 
may be, or with such laws as the states may respectively hereafter 


COMMERCIAL POWERS 


121 


enact for the purpose, until further legislative provision shall be 
made by Congress.” 

If the law of Pennsylvania, now in question, had been in exist¬ 
ence at the date of this act of Congress, we might hold it to have 
been adopted by Congress, and thus made a law of the United 
States, and so valid. Because this act does, in effect, give the force 
of an act of Congress, to the then existing state laws on this sub¬ 
ject, so long as they should continue unrepealed by the state which 
enacted them. But the law on which these actions are founded, 
was not enacted till 1803. What effect then can be attributed to 
so much of the act of 1789 as declares that pilots shall continue to 
be regulated in conformity “with such laws as the states may re¬ 
spectively hereafter enact for the purpose, until further legislative 
provision shall be made by Congress”? 

If the states were divested of the power to legislate on this sub¬ 
ject by the grant of the commercial power to Congress, it is plain 
this act could not confer upon them power thus to legislate. If the 
Constitution excluded the states from making any law regulating 
commerce, certainly Congress cannot regrant, or in any manner re¬ 
convey to the states that power. And yet this act of 1789 gives 
its sanction only to laws enacted by the states. This necessarily 
implies a constitutional power to legislate; for only a rule created 
by the sovereign power of a state acting in its legislative capacity, 
can be deemed a law enacted by a state; and if the state has so 
limited its sovereign power that it no longer extends to a particu¬ 
lar subject, manifestly it cannot, in any proper sense, be said to- 
enact laws thereon. Entertaining these views, we are brought di¬ 
rectly and unavoidably to the consideration of the question, wheth¬ 
er the grant of the commercial power to Congress did per se de¬ 
prive the states of all power to regulate pilots. This question has 
never been decided by this court, nor, in our judgment, has any 
case depending upon all the considerations which must govern 
this one, come before this court. The grant of commercial power 
to Congress does not contain any terms which expressly exclude 
the states from exercising an authority over its subject-matter. 
If they are excluded, it must be because the nature of the power 
thus granted to Congress requires that a similar authority should 
not exist in the states. If it were conceded on the one side that 
the nature of this power, like that to le^gislate for the District of 
Columbia, is absolutely and totally repugnant'to the existence of 
similar power in the states, probably no one would deny that the 
grant of the power to Congress, as effectually and perfectly ex¬ 
cludes the states from all future legislation on the subject, as if 
express words had been used to exclude them. And on the other 
hand, if it were admitted that the existence of this power in Con¬ 
gress, like the power of taxation, is compatible with the existence 


122 


POWERS OP CONGRESS 


of a similar power in the states, then it would be in conformity 
with the contemporary exposition of the Constitution (“Feder¬ 
alist,” No. 32), and with the judicial construction given from time 
to time by this court, after the most deliberate consideration, to 
hold that the mere grant of such a power to Congress, did not im¬ 
ply a prohibition on the states to exercise the same power; that 
it is not the mere existence of such a power, but its exercise by 
Congress, which may be incompatible with the exercise of the same 
power by the states, and that the states may legislate in the ab¬ 
sence of congressional regulations. Sturges v. Crowninshield, 4 
Wheat. 193, 4 F. Ed. 529; Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 
19; Willson v. Blackbird Creek Co., 2 Pet. 251, 7 L. Ed. 412. 

The diversities of opinion, therefore, which have existed on this 
subject have arisen from the different views taken of the nature 
of this power. But when the nature of a power like this is spoken 
of, when it is said that the nature of the power requires that it 
should be exercised exclusively by Congress, it must be intended 
to refer to the subjects of that power, and to say they are of such 
a nature as to require exclusive legislation by Congress. Now, 
the power to regulate commerce, embraces a vast field, containing 
not only many, but exceedingly various subjects, quite unlike in 
their nature; some imperatively demanding a single uniform rule, 
operating equally on the commerce of the United States in every 
port; and some, like the subject now in question, as imperatively 
demanding that diversity, which alone can meet the local necessi¬ 
ties of navigation. 

Either absolutely to affirm, or deny that the nature of this power 
requires exclusive legislation by Congress, is to lose sight of the 
nature of the subjects of this power, and to assert concerning all of 
them, what is really applicable but to a part. Whatever subjects 
of this power are in their nature national, or admit only of one uni¬ 
form system, or plan of regulation, may justly be said to be of such 
a nature as to require exclusive legislation by Congress. That this 
cannot be affirmed of laws for the regulation of pilots and pilotage, 
is plain. The act of 1789 contains a clear and authoritative declara¬ 
tion by the first Congress, that the nature of this subject is such 
that until Congress should find it necessary, to exert its power, it 
should be left to the legislation of the states; that it is local and 
not national; that it is likely to be the best provided for, not by one 
system, or plan of regulations, but by as many as the legislative 
discretion of the several states should deem applicable to the local 
peculiarities of the ports within their limits. 

Viewed in this light, so much of this act of 1789, as declares that 
pilots shall continue to be regulated “by such laws as the states 
may respectively hereafter enact for that purpose,” instead of being 


COMMERCIAL POWERS 


123 


held to be inoperative, as an attempt to confer on the states a pow¬ 
er to legislate, of which the Constitution had deprived them, is 
allowed an appropriate and important signification. It manifests 
the understanding of Congress, at the outset of the government, 
that the nature of this subject is not such as to require its exclusive 
legislation. The practice of the states, and of the national govern¬ 
ment, has been in conformity with this declaration, from the origin 
of the national government to this time; and the nature of the 
subject when examined, is such as to leave no doubt of the superior 
fitness and propriety, not to say the absolute necessity, of different 
systems of regulation, drawn from local knowledge and experience, 
and conformed to local wants. How, then, can we say that, by the 
mere grant of power to regulate commerce, the states are deprived 
of all the-power to legislate on this subject, because from the na¬ 
ture of the power the legislation of Congress must be exclusive? 
This would be to affirm that the nature of the power is, in this case, 
something different from the nature of the subject to which, in such 
case, the power extends, and that the nature of the power neces¬ 
sarily demands, in all cases, exclusive legislation by Congress, 
while the nature of one of the subjects of that power, not only does 
not require such exclusive legislation, but may be best provided 
for by many different systems enacted by the states, in conformity 
with the circumstances of the ports within their limits. In con¬ 
struing an instrument designed for the formation of a government, 
and in determining the extent of one of its important grants of 
power to legislate, we can make no such distinction between the 
nature of the power and the nature of the subject on which that 
power was intended practically to operate, nor consider the grant 
more extensive by affirming of the power what is not true of its 
subject now in question. 

It is the opinion of a majority of the court that the mere grant to 
Congress of the power to regulate commerce, did not deprive the 
states of power to regulate pilots, and that although Congress has 
legislated on this subject, its legislation manifests an intention, 
with a single exception, not to regulate this subject, but to leave its 
regulation to the several states. To these precise questions, which 
are all we are called on to decide, this opinion must be understood 
to be confined. It does not extend to the question what other 
subjects, under the commercial power, are within the exclusive 
control of Congress, or may be regulated by the states in the ab¬ 
sence of all congressional legislation; nor to the general question, 
how far any regulation of a subject by Congress, may be deemed 
to operate as an exclusion of all legislation b^^ the states upon the 
same subject. We decide the precise questions before us, upon 
what we deem sound principles, applicable to this particular sub- 


124 


POWERS OF CONGRESS 


ject in the state in which the legislation of Congress has left it. 
We go no further. * ♦ * 

Judgment affirmed. 

[McLean and Wayne, JJ., dissented, and DaniEE, J., concurred 
for other reasons.] 


THE DANIEL BALL (1871) 10 Wall. 557, 563-566, 19 L. Ed. 
999, Mr. Justice Field (holding Grand river, flowing into Lake 
Michigan after a course wholly within the state of Michigan, to 
be a “navigable water of the United States,” within a statute re¬ 
quiring steamers upon such waters to have federal licenses; and 
upholding the requirement of a federal license for a steamer of 
123 tons plying upon it between points in Michigan and so con¬ 
structed as to be incapable of navigating Lake Michigan) : 

“Upon [this] question we entertain no doubt. The doctrine of 
the common law as to the navigability of waters has no applica¬ 
tion in this country. Here the ebb and flow of the tide do not 
constitute the usual test, as in England, or any test at all of the 
navigability of waters. There no waters are navigable in fact, 
or at least to any considerable extent, which are not subject to the 
tide, and from this circumstance tide water and navigable water 
there signify substantially the same thing. But in this country the 
case is widely different. Some of our rivers are as navigable for 
many hundreds of miles above as they are below the limits of tide 
water, and some of them are navigable for great distances by large 
vessels, which are not even affected by the tide at any point during 
their entire length. The Genesee Chief, 12 How. 457, 13 L. Ed. 
1058; Hine v. Trevor, 4 Wall. 555, 18 L. Ed. 451. A different test 
must, therefore, be applied to determine the navigability of our 
rivers, and that is found in their navigable capacity. Those rivers 
must be regarded as public navigable rivers in law which are nav¬ 
igable in fact. And they are navigable in fact when they are used, 
or are susceptible of being used, in their ordinary condition, as 
highways for commerce, over which trade and travel are or may 
be conducted in the customary modes of trade and travel on water. 
And they constitute navigable waters of the United States within 
the meaning of the acts of Congress, in contradistinction from the 
navigable waters of the states, when they form in their ordinary 
condition by themselves, or by uniting with other waters, a con¬ 
tinued highway over which commerce is or may be carried on with 
other states or foreign countries in the customary modes in which 
such commerce is conducted by water. 

“If we apply this test to Grand river, the conclusion follows that 
it must be regarded as a navigable water of the United States. 
From the conceded facts in the case the stream is capable of bearing 



COMMERCIAL POWERS 


125 


a steamer of one hundred and twenty-three tons burden, laden with 
merchandise and passengers, as far as Grand Rapids, a distance of 
forty miles from its mouth in Lake Michigan. And by its junction 
with the lake it forms a continued highway for commerce, both 
with other states and with foreign countries, and is thus brought 
under the direct control of Congress in the exercise of its com¬ 
mercial power. 

“That power authorizes all appropriate legislation for the protec¬ 
tion or advancement of either interstate or foreign commerce, and 
for that purpose such legislation as will insure the convenient and 
safe navigation of all the navigable waters of the United States, 
whether that legislation consists in requiring the removal of ob¬ 
structions to their use, in prescribing the form and size of the ves¬ 
sels employed upon them, or in subjecting the vessels to inspection 
and license, in order to insure their proper construction and equip¬ 
ment. ‘The power to regulate commerce,’ this court said in Gilman 
V. Philadelphia, 3 Wall. 724, 18 L. Ed. 96, ‘comprehends the control 
for that purpose, and to the extent necessary, of all navigable wa¬ 
ters of the United States which are accessible from a state other 
than those in which they lie. For this purpose they are the public 
property of the nation, and subject to all the requisite legislation 
of Congress.’ ” 

“But it is contended that the steamer ‘Daniel Ball’ was only en¬ 
gaged in the internal commerce of the state of Michigan, and was 
not, therefore, required to be inspected or licensed, even if it be 
conceded that Grand river is a navigable water of the United 
States. * * * 

“There is undoubtedly an internal commerce which is subject 
to the control of the states. The power delegated to Congress is 
limited to commerce ‘among the several states,’ with foreign na¬ 
tions, and with the Indian tribes. This limitation necessarily ex¬ 
cludes from federal control all commerce not thus designated, and 
of course that commerce which is carried on entirely within the 
limits of a state, and does not extend to or affect other states. Gib¬ 
bons V. Ogden, 9 Wheat. 194, 195, 6 L. Ed. 23. In this case it is 
admitted that the steamer was engaged in shipping and trans¬ 
porting down Grand river, goods destined and marked for other 
states than Michigan, and in receiving and transporting up the river 
goods brought within the state from without its limits; but inas¬ 
much as her agency in the transportation was entirely within the 
limits of the state, and she did not run in connection with, or in 
continuation of, any line of vessels of railway leading to other states, 
it is contended that she was engaged entirely in domestic com¬ 
merce. But this conclusion does not follow. So far as she was 
employed in transporting goods destined for other states, or goods 
brought from without the limits of Michigan and destined to places 
within that state, she was engaged in commerce between the states, 


126 


POWERS OF CONGRESS 


and however limited that commerce may have been, she was, so 
far as it went, subject to the legislation of Congress. She was 
employed as an instrument of that commerce; for whenever a com¬ 
modity has begun to move as an article of trade from one state to 
another, commerce in that commodity between the states has com¬ 
menced. The fact that several different and independent agencies 
are employed in transporting the commodity, some acting entirely 
in one state, and some acting through two or more states, does in 
no respect affect the character of the transaction. To the extent in 
which each agency acts in that transportation, it is subject to the 
regulation of Congress. 

“It is said that if the position here asserted be sustained, there 
is no such thing as the domestic trade of a state; that Congress 
may take the entire control of the commerce of the country, and 
extend its regulations to the railroads within a state on which grain 
or fruit is transported to a distant market. We answer that the 
present case relates to transportation on the navigable waters 
of the United States, and we are not called upon to express an 
opinion upon the power of Congress over interstate commerce 
when carried on by land transportation. And we answer further, 
that we are unable to draw any clear and distinct line between the 
authority of Congress to regulate an agency employed in com¬ 
merce between the states, when that agency extends through two 
or more states, and when it is confined in its action entirely within 
the limits of a single state. If its authority does not extend to 
an agency in such commerce, when that agency is confined within 
the limits of a state, its entire authority over interstate commerce 
may be defeated. Several agencies combining, each taking up the 
commodity transported at the boundary line at one end of a state, 
and leaving it at the boundary line at the other end, the federal 
jurisdiction would be entirely ousted, and the constitutional pro¬ 
vision would become a dead letter.’* 


SMITH V. ST. LOUIS & S. W. RY. CO. 

(Supreme Court of United States, 1901. 181 U. S. 248, 21 Sup. Ct. 603, 45 

L. Ed. 847.) 

[Error to the Court of Civil Appeals of Texas. The Texas live¬ 
stock sanitary commission was authorized by law to establish quar¬ 
antine anff sanitary regulations for the protection of domestic stock. 
It was made their duty to investigate stock diseases alleged to 
exist and to adopt preventive measures. In June, 1897, the com¬ 
mission recited that it had reason to believe that anthrax had broken 
out in Louisiana or was liable to do so, and recommended that 



COMMERCIAL POWERS 


127 


until after November 15, 1897, no cattle, horses, or mules be trans¬ 
ported thence into Texas. The governor proclaimed this regula¬ 
tion. Plaintiff sued defendant railway for a consequent failure to 
deliver to him in Texas cattle shipped from Louisiana. The Court 
of Civil Appeals gave judgment for the defendant.] 

Mr. Justice McK.e:nna. * ^ * Xo what extent the police 

power of the state may be exerted on traffic and intercourse with 
the state, without conflicting with the commerce clause of the Con¬ 
stitution of the United States, has not been precisely defined. In 
the case of Henderson v. New York, 92 U. S. 259, sub nom. Hen¬ 
derson V. Wickham, 23 L. Ed. 543, it was held that the statute 
of the state, which, aiming to secure indemnity against persons 
coming from foreign countries becoming a charge upon the state, 
required shipowners to pay a fixed sum for each passenger,—that 
is, to pay for all passengers,—not limiting the payment to those 
who might actually become such charge,—was void. Whether the 
statute would have been valid if so limited was not decided. 

In Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550, a statute 
declaring the same purpose as the New York statute, and appar¬ 
ently directed against persons mentally and physically infirm, and 
against convicted criminals and immoral women, was also declared 
void, because it imposed conditions on all passengers, and invested 
a discretion in officers which could be exercised against all pas¬ 
sengers. The court, by Mr. Justice Miller, said: 

“We are not called upon by this statute to decide for or against 
the right of a state, in the absence of legislation by Congress, to 
protect herself by necessary and proper laws against paupers and 
convicted criminals from abroad; nor to lay down the definite 
limit of such right if it exist. Such a right can only arise from a 
vital necessity for its exercise, and cannot be carried beyond the 
scope of that necessity. When a state statute limited to provisions 
necessary and appropriate to that object alone shall, in a proper 
controversy, come before us, it will be time enough to decide that 
question.’^ 

In Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, 
a statute of Missouri which provided that “no Texas, Mexican, or 
Indian cattle shall be driven or otherwise conveyed into or remain 
in any county in this state between the 1st day of March and the 
1st day of November in each year, by any person or persons what¬ 
soever,” was held to be in conflict with the clause of the Consti¬ 
tution which gives to Congress the power to regulate interstate 
commerce. 

The case was an action for damages against the railroad com¬ 
pany for bringing cattle into the state in violation of the act. A 
distinction was made between a proper and an improper exertion 
of the police power of the state. The former was confined to the 
prohibition of actually infected or diseased cattle and to regulations 


128 


POWERS OF CONGRESS 


not transcending such prohibition. The statute was held not to 
be so confined, and hence was declared invalid. * ^ ^ 

In Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. Ed. 49, 18 
Sup. Ct. 757, some prior cases were reviewed, and the court, speak¬ 
ing by Mr. Justice Peckham, said: 

“The general rule to be deduced from the decisions of this court 
is that a lawful article of commerce cannot be wholly excluded from 
importation into a state from another state where it was manufac¬ 
tured or grown. A state has power to regulate the introduction of 
any article, including a food product, so as to insure purity of the 
article imported, but such police power does not include the total 
exclusion even of an article of food. 

“In Minnesota v. Barber, 136 U. S. 313, 34 L. Ed. 455, 3 Interst. 
Com. R. 185, 10 Sup. Ct. 862, it was held that an inspection law 
relating to an article of food was not a rightful exercise of the 
police power of the state, if the inspection prescribed were of such 
a character, or if it were burdened with such conditions, as would 
wholly prevent the introduction of the sound article from other 
states. This was held in relation to the slaughter of animals whose 
meat was to be sold as food in the state passing the so-called in¬ 
spection law. The principle was affirmed in Brimmer v. Rebman, 
138 U. S. 78, 34 L. Ed. 862, 3 Interst. Com. R. 485, 11 Sup. Ct. 213; 
and in Scott v. Donald, 165 U. S. 58, 97, 41 L. Ed. 632, 644, 17 
Sup. Ct. 265.” 

The exclusion in the case at bar is not as complete as in the 
cited cases. That, however, makes no difference if it is within 
their principle; and their principle does not depend upon the num¬ 
ber of states which are embraced in the exclusion. It depends upon 
whether the police power of the state has been exerted beyond its 
province,—exerted to regulate interstate commerce,—exerted to ex¬ 
clude, without discrimination, the good and the bad, the healthy 
and the diseased, and to an extent beyond what is necessary for 
any proper quarantine. The words in italics express an important 
qualification. The prevention of disease is the essence of a quar¬ 
antine law. Such law is directed, not only to the actually dis¬ 
eased, but to what has become exposed to disease. In Morgan's L. 
& T. R. & S. S. Co. V. Louisiana Bd. of Health, 118 U. S. 455, 30 
L. Ed. 237, 6 Sup. Ct. 1114, the quarantine system of Louisiana 
was sustained. It established a quarantine below New Orleans, 
provided health officers and inspection officers, and fees for them, 
to be paid by the ships detained and inspected. The system was 
held to be a proper exercise of the police power of the state for 
the protection of health, though some of its rules amounted to 
regulations of commerce with foreign nations and among the states. 
In Kimmish v. Ball, 129 U. S. 217, 32 L. Ed. 695, 2 Interst. Com. R, 
407, 9 Sup. Ct. 277, certain sections of the laws of Iowa were passed 
on. One of them imposed a penalty upon any person who should 


COMMERCIAL POWERS 


129 


bring into the state any Texas cattle, unless they had been wintered 
at least one winter north of the southern boundary of the state of 
Missouri or Kansas; or should have in his possession any Texas 
cattle between the 1st day of November and the 1st day of April 
following. Another section made any person having in his posses¬ 
sion such cattle liable for any damages which might accrue from 
allowing them to run at large, “and thereby spreading the dis¬ 
ease among other cattle, known as the Texas fever,'’ and there was, 
besides, criminal punishment. The court did not pass upon the 
1st section. In commenting upon the 2d some pertinent remarks 
were made on the facts which justified the statute, and the case of 
Hannibal & St.‘ J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, 
was explained. It was said that the case “interpreted the law of 
Missouri as saying to all transportation companies: ‘You shall not 
bring into the state any Texas cattle, or any Mexican cattle, or 
Indian cattle, between March 1st and December 1st in any year, 
no matter whether they are free from disease or not, no matter 
whether they may do an injury to the inhabitants of the state or 
not; and if you do bring them in, even for the purpose of carrying 
them through the state without unloading them, you shall be sub¬ 
ject to extraordinary liabilities.' Page 473, L. Ed. 531. Such a stat¬ 
ute, the court held, was not a quarantine law, nor an inspection 
law, but a law which interfered with interstate commerce, and 
therefore invalid. At the same time the court admitted unhesitat¬ 
ingly that a state may pass laws to prevent animals suffering from 
contagious or infectious diseases from entering within it. Page 
472, L. Ed. 530. No attempt was made to show that all Texas, 
Mexican, or Indian cattle coming from the malarial districts during 
the months mentioned were infected with the disease, or that such 
cattle were so generally infected that it would have been impos¬ 
sible to* separate the healthy from the diseased. Had such proof 
been given, a different question would have been presented for 
the consideration of the court. Certainly all animals thus infected 
may be excluded from the state by its laws until they are cured 
of the disease, or at least until some mode of transporting them 
without danger of spreading it is devised." 

In Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. Ed. 
878, 18 Sup. Ct. 488, the Husen Case was again commented upon, 
and what the law of Missouri was and was not was again declared. 
A statute of Kansas, however, which made any person who shall 
drive or ship into the state “any cattle liable or capable of commu¬ 
nicating Texas, splenetic or Spanish fever to any domestic cattle 
of this state shall be liable * * * for * * * damages," was 

held not to be a regulation of commerce. It was also held that the 
statute was not repugnant to the act of Congress of May 29, 1884 
Hall Cases Const.L.—9 


130 


POWERS OP CONGRESS 


(23 Stat. at L. 31, chap. 60 [U. S. Comp. St. 1901, p. 299]), known 
as the Animal Industry Act. 

What, however, is a proper quarantine law—what a proper in¬ 
spection law in regard to cattle—has not been declared. Under 
the guise of either a regulation of commerce will not be permitted. 
Any pretense or masquerade will be disregarded, and the true pur¬ 
pose of a statute ascertained. Henderson v. New York, 92 U. S. 
259, sub nom. Henderson v. Wickham, 23 L. Ed. 543, and Chy Lung 
V. Freeman, 92 U. S. 275, 23 L. Ed. 550. But we are not now put 
to any inquiry of that kind. The good faith and sincerity of the 
Texas officers cannot be doubted, and the statutes under which 
they acted cannot be justifiably complained of. The regulations 
prescribed are complained of, but are they not reasonably adaptive 
to the purpose of the statutes,—not in excess of it? Quarantine 
regulations cannot be the same for cattle as for persons, and must 
vary with the nature of the disease to be defended against. As the 
court of civil appeals said: “The necessities of such cases often 
require prompt action. If too long delayed the end to be attained 
by the exercise of the power to declare a quarantine may be de¬ 
feated and irreparable injury done.” 

It is urged that it does not appear that the action of the live-stock 
sanitary commission was taken on sufficient information. It does 
not appear that it was not, and the presumption which the law at¬ 
taches to the acts of public officers must obtain and prevail. The 
plaintiff in error relies entirely on abstract right, which he seems 
to think cannot depend upon any circumstances, or be affected 
by them. This is a radical mistake. It is the character of the cir¬ 
cumstances which gives or takes from a law or regulation of quar¬ 
antine a legal quality. In some cases the circumstance would have 
to be shown to sustain the quarantine, as was said in Kimmish v. 
Ball, 129 U. S. 217, 32 L. Ed. 695, 2 Interst. Com. R. 407, 9 Sup. Ct. 
277. But the presumptions of the law are proof, and such pre¬ 
sumptions exist in the pending case, arising from the provisions of 
and the duties enjoined by the statute, and sanction the action of 
the sanitary commission and the governor of the state. If they 
could have been, they should have been met and overcome, and 
the remarks of the court of civil appeals become pertinent: 

“The facts in this case are not disputed. The plaintiff sues as 
for a conversion, because of a refusal to deliver his cattle at Fort 
Worth. It is necessary to his recovery that he show that it was 
the legal duty of the defendant company to make such delivery. 
It is for the breach of this alleged duty he sues; yet it nowhere 
appears from the record that before the quarantine line in ques¬ 
tion was established the sanitary commission did not make the 
most careful and thorough investigation into the necessity there¬ 
for, if, indeed, that matter could in any event be inquired into. 


COMMERCIAL POWERS 


131 


So far as the record shows, every animal of the kind prohibited in 
the state of Louisiana may have been actually affected with charbon 
or anthrax; and it is conceded that this is a disease different from 
Texas or splenetic fever, and that it is contagious and infectious 
and of the most virulent character/’ 

Judgment affirmed. 

[Harlan and Brown, JJ., gave dissenting opinions, with the for¬ 
mer of which White, J., concurred.] 


WABASH, ST. L. & P. RY. CO. v. ILLINOIS. 

(Supreme Court of United States, 1886. 118 U. S. 557, 7 Sup. Ct. 4, 30 L. 

Ed. 244.) 

[Error to the Supreme Court of Illinois. An Illinois statute pe¬ 
nalized unjust discriminations practiced by railroads against ship¬ 
pers, and enacted that charging the same or a greater amount of 
toll for any transportation within the state than was charged for 
like transportation over a greater distance on the same road should 
be prima facie evidence of such discrimination. The defendant rail¬ 
road charged fifteen cents a hundred pounds for carrying carload 
lots of certain goods from Peoria, Illinois, to New York City, and 
twenty-five cents a hundred for a similar carriage from Gilman, 
Illinois, to New York, although Peoria was 86 miles further from 
New York. The Illinois Supreme Court sustained a suit against 
the railroad for this act, and this writ was taken.] 

Mr. Justice Miller. * * * The Supreme Court of Illinois in 
the case now before us, conceding that each of these contracts was 
in itself a unit, and that the pay received by the Illinois railroad 
company was the compensation for the entire transportation from 
the point of departure in the state of Illinois to the city of New 
York, holds that, while the statute of Illinois is inoperative upon 
that part of the contract which has reference to the transportation 
outside of the state, it is binding and effectual as to so much of the 
transportation as was within the limits of the state of Illinois (Peo¬ 
ple V. Wabash, St. L. & P. R. Co., 104 Ill. 476) ; and, undertaking 
for itself to apportion the rates charged over the whole route, de¬ 
cides that the contract and the receipt of the money for so much 
of it as was performed within the state of Illinois violate the stat¬ 
ute of the state on that subject. 

If the Illinois statute could be construed to apply exclusively to 
contracts for a carriage which begins and ends within the state, 
disconnected from a continuous transportation through or into other 
states, there does not seem to be any difficulty in holding it to be 
valid. For instance, a contract might be made to carry goods for 
a certain price from Cairo to Chicago, or from Chicago to Alton. 



132 


POWERS OP CONGRESS 


The charges for these might be within the competency of the 
Illinois Legislature to regulate. The reason for this is that both 
the charge and the actual transportation in such cases are exclu¬ 
sively confined to the limits of the territory of the state, and is not 
commerce among the states, or interstate commerce, but is exclu¬ 
sively commerce within the state. So far, therefore, as this class 
of transportation, as an element of commerce, is affected by the stat¬ 
ute under consideration, it is not subject to the constitutional pro¬ 
vision concerning commerce among the states. * ^ ^ 

The Supreme Court of Illinois does not place its judgment in the 
present case on the ground that the transportation and the charge 
are exclusively state commerce, but, conceding that it may be a 
case of commerce among the states, or interstate commerce, which 
Congress would have the right to regulate if it had attempted to 
do so, argues that this statute of Illinois belongs to that class of 
commercial regulations which may be established by the laws of 
a state until Congress shall have exercised its power on that sub¬ 
ject. * * [Here follow quotations from Munn v. Illinois, 94 

U. S. 113, 135, 24 L. Ed. 77; C., B. & Q. Ry. v. Iowa, 94 U. S. 155, 
163, 24 L. Ed. 94; and Peik v. Chic. & N. W. Ry., 94 U. S. 164, 
177, 178, 24 L. Ed. 97.] These extracts show that the question 
of the right of the state to regulate the rates of fares and tolls on 
railroads, and how far that right was affected by the commerce 
clause of the Constitution of the United States, was presented to 
the court in those cases. And it must be admitted that, in a gen¬ 
eral way, the court treated the cases then before it as belonging to 
that class of regulations of commerce which, like pilotage, bridging 
navigable rivers, and many others, could be acted upon by the 
states, in the absence of any legislation by Congress on the same 
subject. By the slightest attention to the matter, it will be read¬ 
ily seen that the circumstances under which a bridge may be au¬ 
thorized across a navigable stream within the limits of a state for 
the use of a public highway, and the local rules which shall govern 
the conduct of the pilots of each of the varying harbors of the 
coasts of the United States, depends upon principles far more lim¬ 
ited in their application and importance than those which should 
regulate the transportation of persons and property across the half 
or the whole of the continent, over the territories of half a dozen 
states, through which they are carried without change of car or 
breaking bulk. * * * 

It will be seen from the opinions themselves, and from the argu¬ 
ments of counsel presented in the reports, that the question did not 
receive any very elaborate consideration, either in the opinions of 
the court or in the arguments of counsel. * * * strenu¬ 

ously denied, and very confidently, by all the railroad companies, 
that any legislative body whatever had a right to limit the tolls 
and charges to be made by the carrying companies for transporta- 


COMMERCIAL POWERS 


133 


tion. And the great question to be decided, and which was decided, 
and which was argued in all those cases, was the right of the state 
within which a railroad company did business to regulate or limit 
the amount of any of these traffic charges. * * * 

It is impossible to see any distinction, in its effect upon commerce 
of either class, between a statute which regulates the charges for 
transportation and a statute which levies a tax for the benefit of 
the state upon the same transportation; and, in fact, the judgment 
of the court in the State Freight Tax Case rested upon the ground 
that the tax was always added to the cost of transportation, and 
thus was a tax, in effect, upon the privilege of carrying the goods 
through the state. It is also very difficult to believe that the court 
consciously intended to overrule the first of these cases without any 
reference to it in the opinion. 

At the very next term of the court after the delivery of these 
opinions the case of Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547, 
was decided, in which the same point was considered, in reference 
to a statute of the state of Louisiana which attempted to regulate 
the carriage of passengers upon railroads, steam-boats, and other 
public conveyances, and which provided that no regulations of any 
companies engaged in that business should make any discrimination 
on account of race or color. * * * [Here follows a quotation 

from this case, pointing out that the Louisiana law necessarily 
affected the conduct of the carrier’s business outside of the state 
as well as in it, and concluding:] ‘Tf each state was at liberty to 
regulate the conduct of carriers while within its jurisdiction, the 
confusion likely to follow could not but be productive of great 
inconvenience and unnecessary hardship. Each state could pro¬ 
vide for its own passengers and regulate the transportation of its 
own freight, regardless of the interests of others. Nay, more, it 
could prescribe rules by which the carrier must be governed within 
the state in respect to passengers and property brought from with¬ 
out. On one side of the river or its tributaries he might be required 
to observe one set of rules, and on the other another. Commerce 
cannot flourish in the midst of such embarrassments.” 

The applicability of this language to the case now under con¬ 
sideration, of a continuous transportation of goods from New York 
to central Illinois, or from the latter to New York, is obvious, and 
it is not easy to see how any distinction can be made. Whatever 
may be the instrumentalities by which this transportation from 
the one point to the other is effected, it is but one voyage,—as much 
so as that of the steam-boat on the Mississippi river. It is not the 
railroads themselves that are regulated by this act of the Illinois 
legislature so much as the charge for transportation; and, in lan¬ 
guage just cited, if each one of the states through whose territories 
these goods are transported can fix its own rules for prices, for 
modes of transit, for times and modes of delivery, and all the other 


134 


POWERS OF CONGRESS 


incidents of transportation to which the word ‘^regulation” can be 
applied, it is readily seen that the embarrassments upon interstate 
transportation, as an element of interstate commerce, might be too 
oppressive to be submitted to. “It was,” in the language of the 
court cited above, “to meet just such a case that the commerce 
clause of the Constitution was adopted.” It cannot be too strongly 
insisted upon that the right of continuous transportation, from one 
end of the country to the other, is essential, in modern times, to 
that freedom of commerce from the restraints which the states 
might choose to impose upon it, that the commerce clause was in¬ 
tended to secure. This clause, giving to Congress the power to 
regulate commerce among the states, and with foreign nations, as 
this court has said before, was among the most important of the 
subjects which prompted the formation of the Constitution. Cook 
V. Pennsylvania, 97 U. S. 574, 24 L. Ed. 1015; Brown v. Maryland, 
12 Wheat. 446, 6 L. Ed. 678. And it would be a very feeble and 
almost useless provision, but poorly adapted to secure the entire 
freedom of commerce among the states which was deemed essen¬ 
tial to a more perfect union by the framers of the Constitution, if, 
at every stage of the transportation of goods and chattels through 
the country, the state within whose limits a part of this transpor¬ 
tation must be done could impose regulations concerning the price, 
compensation, or taxation, or any other restrictive regulation inter¬ 
fering with and seriously embarrassing this commerce. ^ * 

We must therefore hold that it is not, and never has been, the 
deliberate opinion of a majority of this court that a statute of a 
state which attempts to regulate the fares and charges by railroad 
companies within its limits, for a transportation which constitutes 
a part of commerce among the states, is a valid law. 

Let us see precisely what is the degree of interference with trans¬ 
portation of property or persons from one state to another which 
this statute proposes. A citizen of New York has goods which he 
desires to have transported by the railroad companies from that 
city to the interior of the state of Illinois. A continuous line of 
rail over which a car loaded with these goods can be carried, and 
is carried habitually, connects the place of shipment with the place 
of delivery. He undertakes to make a contract with a person en¬ 
gaged in the carrying business at the end of this route from whence 
the goods are to start, and he is told by the carrier: “I am free 
to make a fair and reasonable contract for this carriage to the line 
of the state of Illinois, but when the car which carries these goods 
is to cross the line of that state, pursuing at the same time this 
continuous track, I am met by a law of Illinois which forbids me 
to make a free contract concerning this transportation within that 
state, and subjects me to certain rules by which I am to be gov¬ 
erned as to the charges which the same railroad company in Illinois 
may make, or has made, with reference to other persons and other 


COMMERCIAL POWERS 


135 


places of delivery.” So that while that carrier might be willing 
to carry these goods from the city of New York to the city of 
Peoria at the rate of 15 cents per hundred pounds, he is not per¬ 
mitted to do so, because the Illinois railroad company has already 
charged at the rate of 25 cents per hundred pounds for carriage 
to Gilman, in Illinois, which is 86 miles shorter than the distance 
to Peoria. So, also, in the present case, the owner of corn, the 
principal product of the country, desiring to transport it from 
Peoria, in Illinois, to New York, finds a railroad company willing 
to do this at the rate of 15 cents per hundred pounds for a car-load, 
but is compelled to pay at the rate of 25 cents per hundred pounds, 
because the railroad company has received from a person residing 
at Gilman 25 cents per hundred pounds for the transportation of a 
car-load of the same class of freight over the same line of road 
from Gilman to New York. This is the result of the statute of 
Illinois, in its endeavor to prevent unjust discrimination, as con¬ 
strued by the supreme court of that state. The effect of it is that 
whatever may be the rate of transportation per mile charged by 
the railroad company from Gilman to Sheldon, a distance of 23 
miles, in which the loading and the unloading of the freight is the 
largest expense incurred by the railroad company, the same rate 
per mile must be charged from Peoria to the city of New York. 
The obvious injustice of such a rule as this, which railroad com¬ 
panies are by heavy penalties compelled to conform to, in regard 
to commerce among the states, when applied to transportation 
which includes Illinois in a long line of carriage through several 
states, shows the value of the constitutional provision which con¬ 
fides the power of regulating interstate commerce to the Congress 
of the United States, whose enlarged view of the interests of 
all the states, and of the railroads concerned, better fits it to estab¬ 
lish just and equitable rules. 

Of the justice or propriety of the principle which lies at the 
foundation of the Illinois statute it is not the province of this court 
to speak. As restricted to a transportation which begins and ends 
within the limits of the state, it may be very just and equitable, 
and it certainly is the province of the state Legislature to determine 
that question; but when it is attempted to apply to transportation 
through an entire series of states a principle of this kind, and each 
one of the states shall attempt to establish its own rates of transpor¬ 
tation, its own methods to prevent discrimination in rates, or to 
permit it, the deleterious influence upon the freedom of commerce 
among the states, and upon the transit of goods through those states, 
cannot be overestimated. That this species of regulation is one 
which must be, if established at all, of a general and national char¬ 
acter, and cannot be safely and wisely remitted to local rules and 
local regulations, we think is clear from what has already been 
said. And if it be a regulation of commerce, as we think we have 


136 


POWERS OF CONGRESS 


demonstrated it is, and as the Illinois court concedes it to be, 
it must be of that national character; and the regulation can only 
appropriately exist by general rules and principles, which demand 
that it should be done by the Congress of the United States under 
the commerce clause of the Constitution. 

Judgment reversed. 

[Bradee)y, J., gave a dissenting opinion, in which concurred 
Waite:, C. J., and Gray, J.] 


LUXTON V. NORTH RIVER BRIDGE CO. (1894) 153 U. S. 
525, 529, 530, 533, 534, 14 Sup. Ct. 891, 38 E. Ed. 808, Mr. Justice 
Gray (upholding a federal statute incorporating a bridge company 
authorized to build a bridge across the Hudson river between New 
York and New Jersey and to take land therefor by eminent do¬ 
main) : 

“The Congress of the United States, being empowered by the 
Constitution to regulate commerce among the several states, and 
to pass all laws necessary or proper for carrying into execution any 
of the powers specifically conferred, may make use of any appro¬ 
priate means for this end. As said by Chief Justice Marshall: 
‘The power of creating a corporation, though appertaining to 
sovereignty, is not, like the power of making war, or levying taxes, 
or of regulating commerce, a great substantive and independent 
power, which cannot be implied as incidental to other powers, or 
used as a means of executing them. It is never the end for which 
other powers are exercised, but a means by which other objects are 
accomplished.’ Congress, therefore, may create corporations as 
appropriate means of executing the powers of government, as, 
for instance, a bank for the purpose of carrying on the fiscal opera¬ 
tions of the United States, or a railroad corporation for the purpose 
of promoting commerce among the states. McCulloch v. Mary¬ 
land, 4 Wheat. 316, 411, 422, 4 L. Ed. 579; Osborn v. Bank, 9 
Wheat. 738, 861, 873, 6 L. Ed. 204; Pacific Railroad Removal 
Cases, 115 U. S. 1, 18, 5 Sup. Ct. 1113, 29 L. Ed. 319; California 
V. Central Pac. R. Co., 127 U. S. 1, 39, 8 Sup. Ct. 1073, 32 L. Ed. 
150. Congress has likewise the power, exercised early in this 
century by successive acts in the case of the Cumberland or 
National road from the Potomac across the Alleghenies to the 
Ohio, to authorize the construction of a public highway connecting 
several states. See Indiana v. U. S., 148 U. S. 148, 13 Sup. Ct. 
564, 37 E. Ed. 401. And whenever it becomes necessary, for the 
accomplishment of any object within the authority of Congress, to 
exercise the right of eminent domain, and take private lands, mak¬ 
ing just compensation to the owners. Congress may do this with or 
without a concurrent act of the state in which the lands lie. Van 
Brocklin v. Tennessee, 117 U. S. 151, 154, 6 Sup. Ct. 670, 29 E. Ed. 



COMMERCIAL POWERS 


137 


845, and cases cited; Cherokee Nation v. Southern Kansas Ry. 
Co., 135 U. S. 641, 656, 10 Sup. Ct. 965, 34 L. Ed. 295. 

“From these premises, the conclusion appears to be inevitable 
that, although Congress may, if it sees fit, and as it has often done, 
recognize and approve bridges erected by authority of two states 
across navigable waters between them, it may, at its discretion, use 
its sovereign powers, directly or through a corporation created 
for that object, to construct bridges for the accommodation of in¬ 
terstate commerce by land, as it undoubtedly may to improve the 
navigation of rivers for the convenience of interstate commerce by 
water. 1 Hare, Const. Law, 248, 249. See Acts of July 14, 1862, 
c. 167 (12 Stat. 569) ; February 17, 1865, c. 38 (13 Stat. 431) ; July 
25, 1866, c. 246 (14 Stat. 244); March 3, 1871, c. 121, § 5 (16 Stat. 
572, 573); June 16, 1886, c. 417 (24 Stat. 78). * * 

“In California v. Central Pac. R. Co., 127 U. S. 1, 8 Sup. Ct. 1073, 
32 L. Ed. 150, it was directly adjudged that Congress has au¬ 
thority, in the exercise of its power to regulate commerce among 
the several states, to authorize corporations to construct railroads 
across the states as well as the territories of the United States; 
and Mr. Justice Bradley, again speaking for the court, and referring 
to the acts of Congress establishing corporations to build railroads 
across the continent, said: 'It cannot at the present day be doubted 
that Congress, under the power to regulate commerce among the 
several states, as well as to provide for postal accommodations and 
military exigencies, had authority to pass these laws. The power 
to construct, or to authorize individuals or corporations to con¬ 
struct, national highways and bridges from state to state, is essen¬ 
tial to the complete control and regulation of interstate commerce. 
Without authority in Congress to establish and maintain such 
highways and bridges, it would be without authority to regulate 
one of the most important adjuncts of commerce. This power in 
former times was exerted to a very limited extent, the Cumberland 
or National road being the most notable instance. Its exertion 
was but little called for, as commerce was then mostly conducted 
by water, and many of our statesmen entertained doubts as to the 
existence of the power to establish ways of communication by 
land. But since, in consequence of the expansion of the country, 
the multiplication of its products, and the invention of railroads- 
and locomotion by steam, land transportation has so vastly in¬ 
creased, a sounder consideration of the subject has prevailed, and 
led to the conclusion that Congress has plenary power over the 
whole subject. Of course, the authority of Congress over the ter¬ 
ritories of the United States, and its power to grant franchises 
exercisable therein, are, and ever have been, undoubted. But the 
wider power was very freely exercised, and much to the general 
satisfaction, in the creation of the vast system of railroads con¬ 
necting the East with the Pacific, traversing states as well as ter- 


138 


POWERS OF CONGRESS 


ritories, and employing the agency of state as well as federal cor¬ 
porations/ 127 U. S. 39, 40, 8 Sup. Ct. 1073, 32 L. Ed. 150. 

s(t SK He 

'"In the light of the foregoing principles and authorities, the 
objection made to the constitutionality of this act cannot be sus¬ 
tained/* 


SOUTHERN RY. CO. v. UNITED STATES (1911) 222 U. S. 
20, 26, 27, 32 Sup. Ct. 2, 56 E. Ed. 72, Mr. Justice Van De^vanter 
(upholding the imposition of a penalty upon defendant company 
for hauling upon its interstate railroad in intrastate traffic three 
cars not equipped with safety couplers as required by the federal 
Safety Appliance Act of 1893 as amended in 1903 [27 Stat. 531, 
c. 196, U. S. Comp. St. 1901, p. 3174; 32 Stat. 943, c. 976, U. S. 
Comp. St. Supp. 1911, p. 1314] ): 

“It must be held that the original act, as enlarged by the amend¬ 
atory one, is intended to embrace all locomotives, cars, and simi¬ 
lar vehicles used on any railroad which is a highway of interstate 
commerce. 

“We come, then, to the question whether these acts are within 
the power of Congress under the commerce clause of the Constitu¬ 
tion, considering that they are not confined to vehicles used in 
moving interstate traffic, but embrace vehicles used in moving in¬ 
trastate traffic. The answer to this question depends upon anoth¬ 
er, which is. Is there a real or substantial relation or connection 
between what is required by these acts in respect of vehicles used 
in moving intrastate traffic, and the object which the acts obviously 
are designed to attain; namely, the safety of interstate commerce 
and of those who are employed in its movement? Or, stating it 
in another way. Is there such a close or direct relation or con¬ 
nection between the two classes of traffic, when moving over the 
same railroad, as to make it certain that the safety of the inter¬ 
state traffic and of those who are employed in its movement will 
be promoted in a real or substantial sense by applying the re¬ 
quirements of these acts to vehicles used in moving the traffic 
which is intrastate as well as to those used in moving that which 
is interstate? If the answer to this question, as doubly stated, be 
in the affirmative, then the principal question must be answered in 
the same way. And this is so, not because Congress possesses 
any power to regulate intrastate commerce as such, but because 
its power to regulate interstate commerce is plenary, and com¬ 
petently may be exerted to secure the safety of the persons and 
property transported therein and of those who are employed in 
such transportation, no matter what may be the source of the dan¬ 
gers which threaten it. That is to say, it is no objection to such 



COMMERCIAL POWERS 


139 


an exertion of this power that the dangers intended to be avoided 
arise, in whole or in part, out of matters connected with intra¬ 
state commerce. 

“Speaking only of railroads which are highways of both inter¬ 
state and intrastate commerce, these things are of common knowl¬ 
edge : Both classes of traffic are at times carried in the same car, 
and when this is not the case, the cars in which they are carried are 
frequently commingled in the same train and in the switching 
and other movements at terminals. Cars are seldom set apart 
for exclusive use in moving either class of traffic, but generally are 
used interchangeably in moving both; and the situation is much 
the same with trainmen, switchmen, and like employes, for they 
usually, if not necessarily, have to do with both classes of traffic. 
Besides, the several trains on the same railroad are not independent 
in point of movement and safety, but are interdependent; for 
whatever brings delay or disaster to one, or results in disabling 
one of its operatives, is calculated to impede the progress and im¬ 
peril the safety of other trains. And so the absence of appropriate 
safety appliances from any part of any train is a menace not only 
to that train, but to others. 

“These practical considerations make it plain, as we think, 
that the questions before stated must be answered in the affirma¬ 
tive/* 


SECOND EMPLOYERS’ LIABILITY CASES. 

(Supreme Court of United States, 1912. 223 U. S. 1, 32 Sup. Ct. 169, 56 L. 

Ed. 327, 38 L. R. A. [N. S.] 44.) 

[Error to the Supreme Court of Connecticut and to the United 
States Circuit Courts for the Districts of Minnesota and of Massa¬ 
chusetts. The three cases were suits against railroads for person¬ 
al injuries to employes, brought under the federal Employers’ Lia¬ 
bility Act of 1908 (35 Stat. 65, c. 149, U. S. Comp. St. Supp. 1911, p. 
1322), which declared that “every common carrier by railroad, 
while engaging in commerce between any of the several states 
or territories, * * * shall be liable in damages [for injury or 

death suffered by any person] while he is employed by such 
carrier in such commerce, * * such injury or death resulting 

in whole or in part from the negligence of any of the officers, 
agents, or employes of such carrier, or by reason of any defect or 
insufficiency, due to its negligence, in its cars, engines, appliances, 
machinery, track, roadbed, works, boats, wharves, or other equip¬ 
ment.” Beneficiaries of the action were designated in case of 
death, and provision was made for survival of the action to desig¬ 
nated persons. The defenses of fellow service, contributory negli¬ 
gence, and assumed risk were abrogated or modified, as indicat- 



140 


POWERS OF CONGRESS 


ed in the opinion below. The Connecticut court declared the act 
invalid and the other two courts upheld it.] 

Mr. Justice Van Dejvanter. * * * Some propositions bear¬ 

ing upon the extent and nature of [the federal] power [to regulate 
commerce] have come to be so firmly settled as no longer to be 
open to dispute, among them being these: 

1. The term “commerce” comprehends more than the mere ex¬ 
change of goods. It embraces commercial intercourse in all its 
branches, including transportation of passengers and property by 
common carriers, whether carried on by water or by land. 

2. The phrase “among the several states” marks the distinction,, 
for the purpose of governmental regulation, between commerce 
which concerns two or more states and commerce which is con¬ 
fined to a single state and does not affect other states,—the power 
to regulate the former being conferred upon Congress and the 
regulation of the latter remaining with the states severally. 

3. “To regulate,” in the sense intended, is to foster, protect, con¬ 
trol, and restrain, with appropriate regard for the welfare of those 
who are immediately concerned and of the public at large. 

4. This power over commerce among the states, so conferred 
upon Congress, is complete in itself, extends incidentally to every 
instrument and agent by which such commerce is carried on, may 
be exerted to its utmost extent over every part of such commerce, 
and is subject to no limitations save such as are prescribed in 
the Constitution. But, of course, it does not extend to any matter 
or thing which does not have a real or substantial relation to some 
part of such commerce. 

5. Among the instruments and agents to which the power ex¬ 
tends are the railroads over which transportation from one state to^ 
another is conducted, the engines and cars by which such trans¬ 
portation is effected, and all who are in any wise engaged in such 
transportation, whether as common carriers or as their employes. 

6. The duties of common carriers in respect of the safety of 
their employes, while both are engaged in commerce among the 
states, and the liability of the former for injuries sustained by the 
latter, while both are so engaged, have a real or substantial relation 
to such commerce, and therefore are within the range of this pow¬ 
er. [Citing cases.] 

As is well said in the brief prepared by the late Solicitor Gen¬ 
eral: “Interstate commerce—if not always, at any rate when the 
commerce is transportation—is an act. Congress, of course, can 
do anything which, in the exercise by itself of a fair discretion, 
may be deemed appropriate to save the act of interstate commerce 
from prevention or interruption, or to make that act more secure, 
more reliable, or more efficient. The act of interstate commerce 
is done by the labor of men and with the help of things; and 
these men and things are the agents and instruments of the com- 


COMMERCIAL POWERS 


141 


merce. If the agents or instruments are destroyed while they are 
doing the act, commerce is stopped; if the agents or instruments 
are interrupted, commerce is interrupted; if the agents or instru¬ 
ments are not of the right kind or quality, commerce in consequence 
becomes slow or costly or unsafe or otherwise inefficient; and if the 
conditions under which the agents or instruments do the work of 
commerce are wrong or disadvantageous, those bad conditions may 
and often will prevent or interrupt the act of commerce or make 
it less expeditious, less reliable, less economical, and less secure. 
Therefore, Congress may legislate about the agents and instru¬ 
ments of interstate commerce, and about the conditions under 
which those agents and instruments perform the work of inter¬ 
state commerce, whenever such legislation bears, or, in the exer¬ 
cise of a fair legislative discretion, can be deemed to bear, upon the 
reliability or promptness or economy or security or utility of the 
interstate commerce act.” 

In view of these settled propositions, it does not admit of doubt 
that the answer to the first of the questions before stated must be 
that Congress, in the exertion of its power over interstate com¬ 
merce, may regulate the relations of common carriers by railroad 
and their employes, while both are engaged in such commerce, 
subject always to the limitations prescribed in the Constitution, 
and to the qualification that the particulars in which those rela¬ 
tions are regulated must have a real or substantial connection with 
the interstate commerce in which the carriers and their employes 
are engaged. 

We come, then, to inquire whether Congress has exceeded its 
power in that regard by prescribing the regulations embodied in 
the present act. It is objected that it has, (1) because the abroga¬ 
tion of the fellow-servant rule, the extension of the carrier’s lia¬ 
bility to cases of death, and the restriction of the defenses of con¬ 
tributory negligence and assumption of risk,® have no tendency to 
promote the safety of the employes, or to advance the commerce in 
which they are engaged; (2) because the liability imposed for in¬ 
juries sustained by one employe through the negligence of anoth¬ 
er, although confined to instances where the injured employe is 
engaged in interstate commerce, is not confined to instances where 
both employes are so engaged. * * * 

Of the objection to these changes it is enough to observe: * * 

Second. The natural tendency of the changes described is to 
impel the carriers to avoid or prevent the negligent acts and omis¬ 
sions which are made the bases of the rights of recovery which 
the statute creates and defines; and as whatever makes for that 
end tends to promote the safety of the employes and to advance 

8 These defenses were entirely abrogated where the employer’s violation of 
a safety statute contributed to the injury, and in other cases the defense of 
contributory negligence was displaced by the rule of “comparative negligence.” 


142 


POWERS OF CONGRESS 


the commerce in which they are engaged, we entertain no doubt 
that in making those changes Congress acted within the limits 
of the discretion confided to it by the Constitution. Lottery Case 
(Champion v. Ames) 188 U. S. 321, 353, 355, 47 L. Ed. 492, 500, 
501, 23 Sup. Ct. 321; Atlantic Coast Line R. Co. v. Riverside Mills, 
219 U. S. 186, 203, 55 L. Ed. 167, 181, 31 L. R. A. (N. S.) 7, 31 Sup. 
Ct. 164. 

We are not unmindful that that end was being measurably at¬ 
tained through the remedial legislation of the several states, but 
that legislation has been far from uniform, and it undoubtedly rest¬ 
ed with Congress to determine whether a national law, operating 
uniformly in all the states, upon all carriers by railroad engaged 
in interstate commerce, would better subserve the needs of that 
commerce. The Lottawanna (Rodd v. Heartt), 21 Wall. 558, 581, 
582, 22 L. Ed. 654, 664; Baltimore & O. R. Co. v. Baugh, 149 U. 
S. 368, 378, 379, 37 L. Ed. 772, 777, 778, 13 Sup. Ct. 914. 

The second objection proceeds upon the theory that, even 
although Congress has power to regulate the liability of a carrier 
for injuries sustained by one employe through the negligence of 
another, where all are engaged in interstate commerce, that power 
does not embrace instances where the negligent employe is en¬ 
gaged in intrastate commerce. But this is a mistaken theory, in 
that it treats the source of the injury, rather than its effect upon 
interstate commerce, as the criterion of congressional power. As 
was said in Southern R. Co. v. United States, 222 U. S. 20, 27, 56 
L. Ed. 72, 32 Sup. Ct. 2, that power is plenary, and competently 
may be exerted to secure the safety of interstate transportation 
and of those who are employed therein, no matter what the source 
of the dangers which threaten it. The present act, unlike the one 
condemned in Employers’ Liability Cases (Howard v. Illinois C. 
R. Co.) 207 U. S. 463, 52 L. Ed. 297, 28 Sup. Ct. 141, deals only 
with the liability of a carrier engaged in interstate commerce for' 
injuries sustained by its employes while engaged in such commerce. 
And this being so, it is not a valid objection that the act embraces 
instances where the causal negligence is that of an employe en¬ 
gaged in intrastate commerce; for such negligence, when operat¬ 
ing injuriously upon an employe engaged in interstate commerce, 
has the same effect upon that commerce as if the negligent em¬ 
ploye were also engaged therein. ♦ * * 

Judgments affirmed or reversed accordingly. 


COMMERCIAL POWERS 


143 


LOTTERY CASE. 

(Supreme Court of United States, 1903. 188 U. S. 321, 23 Sup. Ct. 321, 47 L. 

Ed. 492.) . 

[Appeal from the United States Circuit Court for the Northern 
District of Illinois. 'A federal statute of 1895 (28 Stat. 963, c. 191 
[U. S. Comp. St. 1901, p. 3178]) criminally forbade any one to 
cause to be brought into the United States for the purpose of dis¬ 
posing of the same, or to be deposited in the mails, or to be carried 
from one state to another, any lottery tickets or advertisements 
thereof. One Champion was arrested in Chicago charged with con¬ 
spiracy to violate the above act, and in pursuance thereof with hav¬ 
ing caused the Wells-Fargo Express Company to carry lottery 
tickets in a South American lottery from Texas to California. His 
writ of habeas corpus based upon the alleged invalidity of the 
above act was dismissed by the Circuit Court.] 

Mr. Justice Harlan: ^ What is the import of the word 

“commerce” as used in the Constitution? It is not defined by that 
instrument. Undoubtedly, the carrying from one state to another 
by independent carriers of things or commodities that are ordinary 
subjects of traffic, and which have in themselves a recognized value 
in money, constitutes interstate commerce. But does not com¬ 
merce among the several states include something more? Does 
not the carrying from one state to another, by independent carriers, 
of lottery tickets that entitle the holder to the payment of a certain 
amount of money therein specified, also constitute commerce among 
the states? * * * [Here are discussed, among other cases. 

Gibbons v. Ogden, ante, p.tl69; Pensacola Tel. Co. v. W. U. Tel. 
Co., 96 U. S. 1, 24 L. Ed. 70B; Covington Bridge Co. v. Kentucky, 
154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962; and Hanley v. K. C. 
Ry., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333.] 

The cases cited sufficiently indicate the grounds upon which this 
court has proceeded when determining the meaning and scope of 
the commerce clause. They show that commerce among the states 
embraces navigation, intercourse, communication, traffic, the transit 
of persons, and the transmission of messages by telegraph. They 
also show that the power to regulate commerce among the several 
states is vested in Congress as absolutely as it would be in a single 
government, having in its constitution the same restrictions on the 
exercise of the power as are found in the Constitution of the United 
States; that such power is plenary, complete in itself, and may be 
exerted by Congress to its utmost extent, subject only to such 
limitations as the Constitution imposes upon the exercise of the 
powers granted by it; and that in determining the character of 
the regulations to be adopted Congress has a large discretion which 
is not to be controlled by the courts, simply because, in their opin- 


144 


POWERS OF CONGRESS 


ion, such regulations may not be the best or most effective that 
could be employed, hs jk * 

It was said in argument that lottery tickets are not of any real or 
substantial value in themselves, and therefore are not subjects of 
commerce. If that were conceded to be the only legal test as to 
what are to be deemed subjects of the commerce that may be regu¬ 
lated by Congress, we cannot accept as accurate the broad state¬ 
ment that such tickets are of no value. * * * These tickets 

were the subject of traffic; they could have been sold; and the 
holder was assured that the company would pay to him the amount 
of the prize drawn. * * ^j-e of opinion that lottery tick¬ 

ets are subjects of traffic, and therefore are subjects of commerce, 
and the regulation of the carriage of such tickets from state to 
state, at least by independent carriers, is a regulation of commerce 
among the several states. 

But it is said that * * * authority given Congress was 

not to prohibit, but only to regulate. * * * 

We have said that the carrying from state to state of lottery 
tickets constitutes interstate commerce, and that the regulation of 
such commerce is within the power of Congress under the Consti¬ 
tution. Are we prepared to say that a provision which is, in effect, 
a prohibition of the carriage of such articles from state to state is 
not a fit or appropriate mode for the regulation of that particular 
kind of commerce? If lottery traffic, carried on through interstate 
commerce, is a matter of which Congress may take cognizance and 
over which its power may be exertedj can it be possible that it must 
tolerate the traffic, and simply regulate the manner in which it 
may be carried on? Or may not Congress, for the protection of 
the people of all the states, and under the power to regulate inter¬ 
state commerce, devise such means, within the scope of the Con¬ 
stitution, and not prohibited by it, as will drive that traffic out of 
commerce among the states? 

In determining whether regulation may not under some circum¬ 
stances properly take the form or have the effect of prohibition, the 
nature of the interstate traffic which it was sought by the act of 
May 2d, 1895, to suppress cannot be overlooked. * * * ^ 

If a state, when considering legislation for the suppression of 
lotteries within its own limits, may properly take into view the 
evils that inhere in the raising of money, in that mode, why may 
not Congress, invested with the power to regulate commerce 
among the several states, provide that such commerce shall not be 
polluted by the carrying of lottery tickets from one state to an¬ 
other? In this connection it must not be forgotten that the power 
of Congress to regulate commerce among the states is plenary, is 
complete in itself, and is subject to no limitations except such as 
may be found in the Constitution. What provision in that instru- 


COMMERCIAL POWERS 


145 


ment can be regarded as limiting the exercise of the power granted? 
What clause can be cited which, in any degree, countenances the 
suggestion that one may, of right, carry or cause to be carried 
from one state to another that which will harm the public morals? 
We cannot think of any clause of that instrument that could pos¬ 
sibly be invoked by those who assert their right to send lottery 
tickets from state to state except the one providing that no person 
shall be deprived of his liberty without due process of law. * * * 

But surely it will not be said to be a part of anyone’s liberty, as 
recognized by the supreme law of the land, that he shall be allowed 
to introduce into commerce among the states an element that will 
be confessedly injurious to the public morals. 

If it be said that the act of 1895 is inconsistent with the tenth 
amendment, reserving to the states respectively, or to the people, 
the powers not delegated to the United States, the answer is that 
the power to regulate commerce among the states has been ex¬ 
pressly delegated to Congress. 

Besides, Congress, by that act, does not assume to interfere with 
traffic or commerce in lottery tickets carried on exclusively within 
the limits of any state, but has in view only commerce of that kind 
among the several states. It has not assumed to interfere with 
the completely internal affairs of any state, and has only legislated 
in respect of a matter which concerns the people of the United 
States. As a state may, for the purpose of guarding the morals of 
its own people, forbid all sales of lottery tickets within its limits, 
so Congress, for the purpose of guarding the people of the United 
States against the “widespread pestilence of lotteries” and to pro¬ 
tect the commerce which concerns all the states, may prohibit the 
carrying of lottery tickets from one state to another. In legis¬ 
lating upon the subject of the traffic in lottery tickets, as carried 
on through interstate commerce. Congress only supplemented the 
action of those states—perhaps all of them—which, for the protec¬ 
tion of the public morals, prohibit the drawing of lotteries, as well 
as the sale or circulation of lottery tickets, within their respective 
limits. It said, in effect, that it would not permit the declared 
policy of the states, which sought to protect their people against 
the mischiefs of the lottery business, to be overthrown or disre¬ 
garded by the agency of interstate commerce. We should hesitate 
long before adjudging that an evil of such appalling character, 
carried on through interstate commerce, cannot be met and crushed 
by the only power competent to that end. We say competent to 
that end, because Congress alone has the power to occupy, by 
legislation, the whole field of interstate commerce. * * * 

We know of no authority in the courts to hold that the means 
thus devised are not appropriate and necessary to protect the coun- 
Hall Cases Const.L.— 10 


146 


POWERS OP CONGRESS 


try at large against a species of interstate commerce which, al¬ 
though in general use and somewhat favored in both national and 
state legislation in the early history of the country, has grown into 
disrepute, and has become offensive to the entire people of the 
nation. It is a kind of traffic which no one can be entitled to pur¬ 
sue as of right. * * * 

[After discussing Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 
47 L. Ed. 108; Addyston Pipe Co. v. U. S., 175 U. S. 211, 20 
Sup. Ct. 96, 44 L. Ed. 136; and Re Rahrer, post, p. 184, as involv¬ 
ing the validity of the regulation of commerce by prohibition:] It 
is said, however, that if, in order to suppress lotteries carried on 
through interstate commerce. Congress may exclude lottery tickets 
from such commerce, that principle leads necessarily to the conclu¬ 
sion that Congress may arbitrarily exclude from commerce among 
the states any article, commodity, or thing, of whatever kind or 
nature, or however useful or valuable, - which it may choose, no 
matter with what motive, to declare shall not be carried from one 
state to another. It will be time enough to consider the constitu¬ 
tionality of such legislation when we must do so. The present case 
does not require the court to declare the full extent of the power 
that Congress may exercise in the regulation of commerce among 
the states. We may, however, repeat, in this connection, what the 
court has heretofore said, that the power of Congress to regulate 
commerce among the states, although plenary, cannot be deemed 
arbitrary, since it is subject to such limitations or restrictions as 
are prescribed by the Constitution.® This power, therefore, may 
not be exercised so as to infringe rights secured or protected by 
that instrument. It would not be difficult to imagine legislation 
that would be justly liable to such an objection as that stated, and 
be hostile to the objects for the accomplishment of which Congress 
was invested with the general power to regulate commerce among 
the several states. But, as often said, the possible abuse of a power 
is not an argument against its existence. There is probably no gov¬ 
ernmental power that may not be exerted to the injury of the pub¬ 
lic. * * * decide nothing more in the present case than 

that lottery tickets are subjects of traffic among those who choose 
to sell or buy them; that the carriage of such tickets by independ¬ 
ent carriers from one state to another is therefore interstate com¬ 
merce ; that under its power to regulate commerce among the sev¬ 
eral states Congress—subject to the limitations imposed by the 
Constitution upon the exercise of the powers granted—has plenary 
authority over such commerce, and may prohibit the carriage of 
such tickets from state to state; and that legislation to that end, 
and of that character, is not inconsistent with any limitation or 

» See Monongahela Navig. Co. v. United States, ante, p. 94. 


COMMERCIAL POWERS 


147 


restriction imposed upon the exercise of the powers granted to 
Congress. 

Judgment affirmed. 

Mr. Chief Justice Fuller, dissenting [with whom concurred 
Brewer, Shiras, and Peckham, JJ., on the ground that lottery- 
tickets were not articles of commerce nor injurious to such com¬ 
merce] : * * An invitation to dine, or take a drive, or a note 

of introduction, all become articles of commerce under the ruling in 
this case, by being deposited with an express company for trans¬ 
portation. This in effect breaks down all the differences between 
that which is, and that which is not, an article of commerce, and 
the necessary consequence is to take from the states all jurisdiction 
over the subject so far as interstate communication is concerned. 
It is a long step in the direction of wiping out all traces of state 
lines, and the creation of a centralized government. ^ * 


GILMAN V. PHILADELPHIA. 

(Supreme Court of United States, 1866. 3 Wall. 713, 18 U. Ed. 96.) 

[Appeal from the United States Circuit Court for the Eastern 
District of Pennsylvania. Under state authority, Philadelphia was 
about to construct a bridge across the Schuylkill river, a naviga¬ 
ble tidal stream running through the city, and wholly within Penn¬ 
sylvania. It was to be 30 feet high, without draws, and vessels 
with masts could not pass it. Gilman of New Hampshire owned 
coal wharves just above the proposed bridge, access to which would 
be seriously impaired by the bridge, and he sought an injunction 
against its construction, which was denied by the lower court.] 

Mr. Justice SwaynE. * * * Commerce includes navigation. 
The power to regulate commerce comprehends the control for that 
purpose, and to the extent necessary, of all the navigable waters 
of the United States which are accessible from a state other than 
those in which they lie. For this purpose they are the public prop¬ 
erty of the nation, and subject to all the requisite legislation by 
Congress. This necessarily includes the power to keep them open 
and free from any obstruction to their navigation, interposed by 
the states or otherwise; to remove such obstructions when they 
exist; and to provide, by such sanctions as they may deem proper, 
against the occurrence of the evil and for the punishment of offend¬ 
ers. For these purposes. Congress possesses all the powers which 
existed in the states before the adoption of the national Constitu¬ 
tion, and which have always existed in the Parliament in Eng¬ 
land. It is for Congress to determine when its full power shall 
be brought into activity, and as to the regulations and sanctions 
which shall be provided. 



148 


POWERS OF CONGRESS 


A license under the act of 1793, to engage in the coasting trade, 
carries with it right and authority. ^'Commerce among the states” 
does not stop at a state line. Coming from abroad it penetrates 
wherever it can find navigable w^aters reaching from without into 
the interior, and may follow them up as far as navigation is prac¬ 
ticable. Wherever ''commerce among the states” goes, the power 
of the nation, as represented in this court, goes with it to protect 
and enforce its rights. There can be no doubt that the coasting 
trade may be carried on beyond where tlje bridge in question is 
to be built. 

We will now turn our attention to the rights and powers of the 
states which are to be considered. The national government pos¬ 
sesses no powers but such as have been delegated to it. The 
states have all but such as they have surrendered. The power to 
authorize the building of bridges is not to be found in the fed¬ 
eral Constitution. It has not been taken from the states. It must 
reside somewhere. They had it before the Constitution was adopt¬ 
ed, and they have it still. * * * The power to regulate com¬ 

merce covers a wide field, and embraces a great variety of subjects. 
Some of these subjects call for uniform rules and national legisla¬ 
tion ; others can be best regulated by rules and provisions sug¬ 
gested by the varying circumstances of different localities, and lim¬ 
ited in their operation to such localities respectively. To this ex¬ 
tent the power to regulate commerce may be exercised by the states. 
Whether the power in any given case is vested exclusively in the 
general government depends upon the nature of the subject to be 
regulated. * * 

The most important authority, in its application to the case be¬ 
fore us, is Willson v. Blackbird Creek Marsh Co., 2 Pet. 245, 7 L. 
Ed. 412 [holding Delaware might authorize the damming of a 
navigable tidal creek within its borders, as against a vessel licensed 
to navigate by the United States]. * * * This opinion came 

from the same "expounder of the Constitution” who delivered the 
earlier and more elaborate judgment in Gibbons v. Ogden. We 
are not aware that the soundness of the principle upon which the 
court proceeded has been questioned in any later case. We can 
see no difference in principle between that case and the one before 
us. Both streams are affluents of the same large river. Each is 
entirely within the state which authorized the obstruction. The 
dissimilarities are in facts which do not affect the legal question. 
Blackbird creek is the less important water, but it had been naviga¬ 
ble, and the obstruction was complete. If the Schuylkill is larger 
and its commerce greater, on the other hand, the obstruction will 
be only partial and the public convenience, to be promoted, is more 
imperative. In neither case is a law of Congress forbidding the 
obstruction an element to be considered. The point that the vessel 


COMMERCIAL POWERS 


149 


was enrolled and licensed for the coasting trade was relied upon in 
that case by the counsel for the defendant. The court was silent 
upon the subject. A distinct denial of its materiality would not 
have been more significant. It seems to have been deemed of 
too little consequence to require notice. Without overruling the 
authority of that adjudication we cannot, by our judgment, annul 
the law of Pennsylvania. 

It must not be forgotten that bridges, which are connecting parts 
of turnpikes, streets, and railroads, are means of commercial trans¬ 
portation, as well as navigable waters, and that the commerce 
which passes over a bridge may be much greater than would ever 
be transported on the water it obstructs. It is for the municipal 
power to weigh the considerations which belong to the subject, and 
to decide which shall be preferred, and how far either shall be made 
subservient to the other. The states have always exercised this 
power, and from the nature and objects of the two systems of gov¬ 
ernment they must always continue to exercise it, subject, however, 
in all cases, to the paramount authority of Congress, whenever the 
power of the state shall be exerted within the sphere of the com¬ 
mercial power which belongs to the nation. 

The states may exercise concurrent or independent power in all 
cases but three: 1. Where the power is lodged exclusively in the 
federal Constitution. 2. Where it is given to the United States and 
prohibited to the states. 3. Where, from the nature and subjects 
of the power, it must necessarily be exercised by the national gov¬ 
ernment exclusively. The power here in question does not, in our 
judgment, fall within either of these exceptions. * * * 

Congress may interpose, whenever it shall be deemed necessary, 
by general or special laws. It may regulate all bridges over nav¬ 
igable waters, remove offending bridges, and punish those who 
shall thereafter erect them. * * 

The defendants are proceeding in no wanton or aggressive spirit. 
The authority upon which they rely was given, and afterwards de¬ 
liberately renewed by the state. The case stands before us as if 
the parties were the state of Pennsylvania and the United States. 
The river, being wholly within her limits, we cannot say the state 
has exceeded the bounds of her authority. Until the dormant power 
of the Constitution is awakened and made effective, by appropriate 
legislation, the reserved power of the states is plenary, and its 
exercise in good faith cannot be made the subject of review by this 
court. * * ^ 

Decree affirmed. 

[Clifford, J., gave a dissenting opinion, in which concurred 
Waynf and Davis, JJ-] 


150 


POWERS OP CONGRESS 


NORTHERN SECURITIES CO. v. UNITED STATES. 

(Supreme Court of United States, 1904. 193 U. S. 197, 24 Sup. Ct. 436, 48 L. 

Ed. 679.) 

[Appeal from the United States Circuit Court for Minnesota. A 
federal statute of 1890 (26 Stat. 209, c. 647 [U. S. Comp. St. 1901, 
p. 3200], the “Sherman Anti-Trust Act”) declared criminally ille¬ 
gal (§ 1) “every contract, combination in the form of trust or oth¬ 
erwise, or conspiracy, in restraint of trade or commerce among 
the several states or with foreign nations”; punished (§ 2) “every 
person who shall monopolize, or attempt to monopolize, or combine 
or conspire * * * to monopolize” any part of said trade or 

commerce; and (§ 4) authorized governmental proceedings in eq¬ 
uity to restrain violations of the act. The Northern Pacific and 
Great Northern Railroad Companies, owning parallel and compet¬ 
ing systems about 9,000 miles in length between the Great Lakes 
and Puget Sound, in 1901 purchased most of the stock of the Bur¬ 
lington Railroad, a connecting system 8,000 miles long, giving their 
bonds therefor; and James J. Hill, with associate stockholders of 
the Great Northern road, and J. P. Morgan, with associate stock¬ 
holders of the Northern Pacific, entered into a combination to form 
a New Jersey corporation to hold the stock of their two railroads, 
shares in the holding corporation to be exchanged at an agreed 
valuation for shares in the railroads. Pursuant thereto, the North¬ 
ern Securities Company was formed and became the holder of over 
three-fourths of the stock of each of the two railroads. The United 
States filed a bill in equity under the above Anti-Trust law against 
the three corporations and the principal individuals concerned in 
this transaction, and obtained a decree forbidding the Securities 
Company from voting or receiving dividends upon any stock of 
the railroad companies, or of exercising any control over their acts, 
but permitting a retransfer of the railroad stocks to holders of Se¬ 
curities Company stock issued therefor.] 

Mr. Justice Hari^an. * * [After summarizing the facts as 

above:] Necessarily the constituent companies ceased, under such 
a combination, to be in active competition for trade and commerce 
along their respective lines, and have become, practically, one pow¬ 
erful consolidated corporation, by the name of a holding corpora¬ 
tion, the principal, if not the sole, object for the formation of which 
was to carry out the purpose of the original combination, under 
which competition between the constituent companies would cease. 
* * * No scheme or device could more certainly come within 

the words of the act,—“combination in the form of a trust or oth¬ 
erwise * * in restraint of commerce among the several states 
or with foreign nations,”—or could more effectively and certainly 
suppress free competition between the constituent companies. This 


COMMERCIAL POWERS 


151 


combination is, within the meaning of the act a '‘trust but if 
not, it is a combination in restraint of interstate and international 
commerce; and that is enough to bring it under the condemna¬ 
tion of the act. The mere existence of such a combination, and the 
power acquired by the holding company as its trustee, constitute a 
menace to, and a restraint upon, that freedom of commerce which 
Congress intended to recognize and protect, and which the public 
is entitled to have protected. ^ ^ * 

How far may Congress go in regulating the af¥airs or conduct of 
state corporations engaged as carriers in commerce among the 
states or of state corporations which, although not directly en¬ 
gaged themselves in such commerce, yet have control of the busi¬ 
ness of interstate carriers? If state corporations, or their stock¬ 
holders, are found to be parties to a combination in the form of 
a trust or otherwise, which restrains interstate or international 
commerce, may they not be compelled to respect any rule for such 
commerce that may be lawfully prescribed by Congress? * * * 

[After summarizing the results of previous decisions under the 
Anti-Trust Act:] In this connection, it is suggested that the con¬ 
tention of the government is that the acquisition and ownership 
of stock in a state railroad corporation is itself interstate commerce 
if that corporation be engaged in interstate commerce. * * * 

We do not understand that the government makes any such con¬ 
tentions or takes any such positions as those statements imply. 
It does not contend that Congress may control the mere acquisi¬ 
tion or the mere ownership of stock in a state corporation engaged 
in interstate commerce. Nor does it contend that Congress can 
control the organization of state corporations authorized by their 
charters to engage in interstate and international commerce. But 
it does contend that Congress may protect the freedom of inter¬ 
state commerce by any means that are appropriate and that are 
lawful, and not prohibited by the Constitution. It does contend 
that no state corporation can stand in the way of the enforcement 
of the national will, legally expressed. What the government par¬ 
ticularly complains of—indeed, all that it complains of here—is the 
existence of a combination among the stockholders of competing 
railroad companies which, in violation of the act of Congress, re¬ 
strains interstate and international commerce through the agency 
of a common corporate trustee, designated to act for both compa¬ 
nies in repressing free competition between them. Independently 
of any question of the mere ownership of stock or of the organiza¬ 
tion of a state corporation, can it in reason be said that such a com¬ 
bination is not embraced by the very terms of the Anti-Trust Act? 
May not Congress declare that combination to be illegal? * * * 

Even if the state allowed consolidation, it would not follow that 
the stockholders of two or more state railroad corporations, having 
competing lines and engaged in interstate commerce, could law- 


152 


POWERS OF CONGRESS 


fully combine and form a distinct corporation to hold the stock 
of the constituent corporations, and, by destroying competition be¬ 
tween them, in violation of the act of Congress, restrain commerce 
among the states and with foreign nations. * ^ * 

When Congress declared contracts, combinations, and conspira¬ 
cies in restraint of trade or commerce to be illegal, it did nothing 
more than apply to interstate commerce a rule that had been long 
applied by the several states when dealing with combinations that 
were in restraint of their domestic commerce. The decisions in 
state courts upon this general subject are not only numerous and 
instructive, but they show the circumstances under which the Anti- 
Trust Act was passed. * * * 

[After citing various state decisions upholding local anti-trust 
statutes:] The cases just cited, it is true, relate to the domestic 
commerce of the states. But they serve to show the authority 
which the states possess to guard the public against combinations 
that repress individual enterprise and interfere with the operation 
of the natural laws of competition among those engaged in trade 
within its limits. They serve also to give point to the declaration 
of this court in Gibbons v. Ogden, 9 Wheat. 197, 6 L. Ed. 70,—a 
principle never modified by any subsequent decision,—that, subject 
to the limitations imposed by the Constitution upon the exercise 
of the powers granted by that instrument, “the power over com¬ 
merce with foreign nations and among the several states is vested 
in Congress as absolutely as it would be in a single government 
having in its constitution the same restrictions on the exercise of 
the power as are found in the Constitution of the United States.’’ 
Is there, then any escape from the conclusion that, subject only 
to such restrictions, the power of Congress over interstate and 
international commerce is as full and complete as is the power of 
any state over its domestic commerce? If a state may strike down 
combinations that restrain its domestic commerce by destroying 
free competition among those engaged in such commerce, what 
power, except that of Congress, is competent to protect the free¬ 
dom of interstate and international commerce when assailed by a 
combination that restrains such commerce by stifling competition 
among those engaged in it? * * 

Will it be said that Congress can meet such emergencies by pre¬ 
scribing the rates by which interstate carriers shall be governed in 
the transportation of freight and passengers? If Congress has the 
power to fix such rates—and upon that question we express no 
opinion—it does not choose to exercise its power in that way or to 
that extent. It has, all will agree, a large discretion as to the 
means to be employed in the exercise of any power granted to it. 
For the present, it has determined to go no farther than to protect 
the freedom of commerce among the states and with foreign states 
by declaring illegal all contracts, combinations, conspiracies, or 


COMMERCIAL POWERS 


153 


monopolies in restraint of such commerce, and make it a public 
offense to violate the rule thus prescribed. How much further it 
may go, we do not now say. * * * 

The suggestion is made that to restrain a state corporation from 
interfering with the free course of trade and commerce among the 
states, in violation of an act of Congress, is hostile to the reserved 
rights of the states. The federal court may not have power to for¬ 
feit the charter of the Securities Company; it may not declare how 
its shares of stock may be transferred on its books, nor prohibit it 
from acquiring real estate, nor diminish or increase its capital stock. 
All these and like matters are to be regulated by the state which 
created the company. But to the end that effect be given to the 
national will, lawfully expressed, Congress may prevent that com¬ 
pany, in its capacity as a holding corporation and trustee, from 
carrying out the purposes of a combination formed in restraint 
of interstate commerce. * ^ Upon like grounds the court 

can, by appropriate orders, prevent the two competing railroad 
companies here involved from co-operating with the Securities Com¬ 
pany in restraining commerce among the states. In short, the 
court may make any order necessary to bring about the dissolu¬ 
tion or suppression of an illegal combination that restrains inter¬ 
state commerce. * * * 

So far as the Constitution of the United States is concerned, a 
state may, indeed, create a corporation, define its powers, prescribe 
the amount of its stock and the mode in which it may be trans¬ 
ferred. It may even authorize one of its corporations to engage in 
commerce of every kind,—domestic, interstate, and international. 
* * * But neither a state corporation nor its stockholders can,, 

by reason of the nonaction of the state or by means of any com¬ 
bination among such stockholders, interfere with the complete en¬ 
forcement of any rule lawfully devised by Congress for the con¬ 
duct of commerce among the states or with foreign nations, ’i' * * 
Whilst every instrumentality of domestic commerce is subject to 
state control, every instrumentality of interstate commerce may 
be reached and controlled by national authority, so far as to compel 
it to respect the rules for such commerce lawfully established by Con¬ 
gress. * * * 

Decree affirmed.^® 

10 In an omitted portion of his opinion (193 U. S. 354, 24 Sup. Ct. 436, 48 
L. Ed. 679), Harlan, J., stated that the Northern Securities Company was not 
a real purchaser or owner of the stock, but merely a custodian to represent 
the combination of stockholders. In Harriman v. No. Secur. Co., 197 U. S. 
244, 291, 25 Sup. Ct. 493, 503, 49 L. Ed. 739 (1905), the Securities Company 
was held to be an absolute owner; Fuller, C. J., saying, referring to the prin¬ 
cipal case: “For the purposes' of that suit it was enough that in any capacity 
the Securities Company had the power to vote the railway shares and to- 
receive the dividends thereon. The objection was that the exercise of its 
powers, whether those of owner or of trustee, would tend to prevent com¬ 
petition, and thus to restrain commerce.” 


154 


POWERS OF CONGRESS 


Mr. Justice BrEwER, concurring. * * * [After stating that 

Congress could not deprive an individual of the right to purchase 
stock control of competing interstate railroads:] But no such in¬ 
vestment by a single individual of his means is here presented. 
There was a combination by several individuals, separately owning 
stock in two competing railroad companies, to place the control 
of both in a single corporation. The purpose to combine, and by 
combination destroy competition, existed before the organization 
of the corporation, the Securities Company. * * * 

If the parties interested in these two railroad companies can, 
through the instrumentality of a holding corporation, place both 
under one control, then in like manner, as was conceded on the 
argument by one of the counsel for the appellants, could the con¬ 
trol of all the railroad companies in the country be placed in a single 
corporation. Nor need this arrangement for control stop with 
what has already been done. The holders of $201,000,000 of stock 
in the Northern Securities Company might organize another cor¬ 
poration to hold their stock in that company, and the new corpo¬ 
ration, holding the majority of the stock in the Northern Securi¬ 
ties Company, and acting in obedience to the wishes of a majority 
of its stockholders, would control the action of the Securities Com¬ 
pany and through it the action of the two railroad companies; and 
this process might be extended until a single corporation whose 
stock was owned by three or four parties would be in practical 
control of both roads; or, having before us the possibilities of com¬ 
bination, the control of the whole transportation system of the 
country. I cannot believe that to be a reasonable or lawful re¬ 
straint of trade. * * * 

Mr. Justice White [with whom concurred Fueler, C. J., and 
Peckham and Holmes, JJ.] dissenting. ^ ^ ^ [Quoting from 

Gibbons v. Ogden, ante, p. 109:] "‘Commerce undoubtedly is traf¬ 
fic, but it is something more,—it is intercourse. It describes the 
commercial intercourse between nations and parts of nations in 
all its branches, and is regulated by prescribing rules for carrying 
on that intercourse ” (Italics mine.) 

I think the ownership of stock in a state corporation cannot be 
said to be in any sense traffic between the states or intercourse be¬ 
tween them. * * * (^an the ownership of stock in a state cor¬ 

poration, by the most latitudinarian construction, be embraced by 
the words “commercial intercourse between nations and parts of na¬ 
tions ?’" * sK Can it in reason be maintained that to prescribe 

rules governing the ownership of stock within a state, in a corpora¬ 
tion created by it, is within the power to prescribe rules for the reg¬ 
ulation of intercourse between citizens of different states? * * 

If the control of the ownership of stock in competing roads by 
one and the same corporation is within the power of Congress, 
and creates a restraint of trade or monopoly forbidden by Congress, 


COMMERCIAL POWERS 


155 


it is not conceivable to me how exactly similar ownership by one 
or more individuals would not create the same restraint or monop¬ 
oly, and be equally within the prohibition which it is decided Con¬ 
gress has imposed. * * * 

Under this doctrine the sum of property to be acquired by indi¬ 
viduals or by corporations, the contracts which they may make, 
would be within the regulating power of Congress. If it were 
judged by Congress that the farmer in sowing his crops should be 
limited to a certain production because overproduction would give 
power to affect commerce. Congress could regulate that subject. 
If the acquisition of a large amount of property by an individual 
was deemed by Congress to confer upon him the power to affect 
interstate commerce if he engaged in it. Congress could regulate 
that subject. If the wage-earner organized to better his condition 
and Congress believed that the existence of such organization would 
give power, if it were exerted, to affect interstate commerce. Con¬ 
gress could forbid the organization of all labor associations. In¬ 
deed, the doctrine must in reason lead to a concession of the right 
in Congress to regulate concerning the aptitude, the character, and 
capacity of persons. If individuals were deemed by Congress to be 
possessed of such ability that participation in the management of 
two great competing railroad enterprises would endow them with 
the power to injuriously affect interstate commerce. Congress could 
forbid such participation. * * * 

The general governmental [power] to reasonably control the use 
of property, affords no foundation for the proposition that there 
exists in government a power to limit the quantity and character of 
property which may be acquired and owned. The difference be¬ 
tween the two is that which exists between a free and constitutional 
government, restrained by law, and an absolute government, un¬ 
restrained by any of the principles which are necessary for the 
perpetuation of society, and the protection of life liberty, and prop¬ 
erty. * * * 

[Holmes, J., also gave an opinion, in which concurred the other 
dissenting justices.] 


WELTON V. MISSOURI. 

(Supreme Court of United States, 1875. 91 U. S. 275, 23 L. Ed. 347.) 

[Error to the Supreme Court of Missouri. A statute required 
a license from all persons peddling in the state goods produced or 
manufactured elsewhere, but required no license for peddling do¬ 
mestic goods. Defendant was convicted of peddling, without a 
license, sewing machines made out of the state, and this was af¬ 
firmed by the state Supreme Court.] 



156 


POWERS OP CONGRESS 


Mr. Justice Fiprd. * * * 'phe license charge exacted is 
sought to be maintained as a tax upon a calling. It was held to be 
such a tax by the Supreme Court of the state; a calling, says the 
court, which is limited to the sale of merchandise not the growth 
or product of the state. 

The general power of the state to impose taxes in the way of 
licenses upon all pursuits and occupations within its limits is ad¬ 
mitted, but, like all other powers, must be exercised in subordina¬ 
tion to the requirements of the federal Constitution. Where the 
business or occupation consists in the sale of goods, the license tax 
required for its pursuit is in effect a tax upon the goods themselves. 
If such a tax be within the power of the state to levy, it matters 
not whether it be raised directly from the goods, or indirectly from 
them through the license to the dealer; but, if such tax conflict with 
any power vested in Congress by the Constitution of the United 
States, it will not be any the less invalid because enforced through 
the form of a personal license. * * * 

So, in like manner, the license tax exacted by the state of Mis¬ 
souri from dealers in goods which are not the product or manufac¬ 
ture of the state, before they can be sold from place to place within 
the state, must be regarded as a tax upon such goods themselves; 
and the question presented is, whether legislation thus discriminat¬ 
ing against the products of other states in the conditions of their 
sale by a certain class of dealers is valid under the Constitution of 
the United States. It was contended in the state courts, and it is 
urged here, that this legislation violates that clause of the Consti¬ 
tution which declares that Congress shall have the power to regu¬ 
late commerce with foreign nations and among the several states. 
The power to regulate conferred by that clause upon Congress is 
one without limitation; and to regulate commerce is to prescribe 
rules by which it shall be governed,—that is, the conditions upon 
which it shall be conducted; to determine how far it shall be free 
and untrammelled, how far it shall be burdened by duties and im¬ 
posts, and how far it shall be prohibited. 

Commerce is a term of the largest import. It comprehends in¬ 
tercourse for the purposes of trade in any and all its forms, includ¬ 
ing the transportation, purchase, sale, and exchange of commodities 
between the citizens of our country and the citizens or subjects of 
other countries, and betw^een the citizens of different states. The 
power to regulate it embraces all the instruments by which such 
commerce may be conducted. So far as some of these instruments 
are concerned, and some subjects which are local in their operation,, 
it has been held that the states may provide regulations until Con¬ 
gress acts with reference to them; but where the subject to which 
the power applies is national in its character, or of such a nature as 
to admit of uniformity of regulation, the power is exclusive of all 
state authority. 


COMMERCIAL POWERS 


157 


It will not be denied that that portion of commerce with foreign 
countries and between the states which consists in the transporta¬ 
tion and exchange of commodities is of national importance, and 
admits and requires uniformity of regulation. The very object of 
investing this power in the general government was to insure this 
uniformity against discriminating state legislation. The depressed 
condition of commerce and the obstacles to its growth previous to 
the adoption of the Constitution, from the want of some single con¬ 
trolling authority, has been frequently referred to by this court in 
commenting upon the power in question. * * * 

The power which insures uniformity of commercial regulation 
must cover the property which is transported as an article of com¬ 
merce from hostile or interfering legislation, until it has mingled 
with and become a part of the general property of the country, and 
subjected like it to similar protection, and to no greater burdens. 
If, at any time before it has thus become incorporated into the mass 
of property of the state or nation, it can be subjected to any restric¬ 
tions by state legislation, the object of investing the control in 
Congress may be entirely defeated. If Missouri can require a 
license tax for the sale by travelling dealers of goods which are 
the growth, product, or manufacture of other states or countries, it 
may require such license tax as a condition of their sale from ordi¬ 
nary merchants, and the amount of the tax will be a matter resting 
exclusively in its discretion. 

The power of the state to exact a license tax of any amount being 
admitted, no authority would remain in the United States or in this 
court to control its action, however unreasonable or oppressive. 
Imposts operating as an absolute exclusion of the goods would 
be possible, and all the evils of discriminating state legislation, fa¬ 
vorable to the interests of one state and injurious to the interests 
of other states and countries, which existed previous to the adop¬ 
tion of' the Constitution, might follow, and the experience of the 
last fifteen years shows would follow, from the action of some of 
the states. 

There is a difficulty, it is true, in all cases of this character, in 
drawing the line precisely where the commercial power of Congress 
ends and the power of the state begins. * * * would be 

premature to state any rule which would be universal in its appli¬ 
cation to determine when the commercial power of the federal gov¬ 
ernment over a commodity has ceased, and the power of the state 
has commenced. It is sufficient to hold now that the commercial 
power continues until the commodity has ceased to be the subject 
of discriminating legislation by reason of its foreign character. 
That power protects it, even after it has entered the state, from any 
burdens imposed by reason of its foreign origin. The act of Mis¬ 
souri encroaches upon this power in this respect, and is therefore, 
in our judgment, unconstitutional and void. 


158 


POWERS OF CONGRESS 


The fact that Congress has not seen fit to prescribe any specific 
rules to govern interstate commerce does not affect the question. 
Its inaction on this subject, when considered with reference to its 
legislation with respect to foreign commerce, is equivalent to a 
declaration that interstate commerce shall be free and untram¬ 
melled. As the main object of that commerce is the sale and ex¬ 
change of commodities, the policy thus established would be de¬ 
feated by discriminating legislation like that of Missouri. ^ * 

Judgment reversed. 


PHILADELPHIA & SOUTHERN MAIL S. S. CO. v. PENN¬ 
SYLVANIA. 

(Supreme Court of United States, 1887. 122 U. S. 326, 7 Sup. Ct. 1118, 30 

L. Ed. 1200.) 

[Error to the Supreme Court of Pennsylvania. A state statute 
imposed a tax of cent, upon the gross receipts of every 

transportation company incorporated by or doing business in the 
state. The Philadelphia, etc., S. S. Company, a Pennsylvania cor¬ 
poration, denied the validity of this tax, as to its receipts derived 
from transportation by sea between different states and to foreign 
countries. From a decision against it, this writ was taken.] 

Mr. Justice Bradei:y. The question which underlies the imme¬ 
diate question in the case is whether the imposition of the tax upon 
the steam-ship company’s receipts amounted to a regulation of,, 
or an interference with, interstate and foreign commerce, and was 
thus in conflict with the power granted by the Constitution to 
Congress. The tax was levied directly upon the receipts derived by 
the company from its fares and freights for the transportation of 
persons and goods between different states, and between the states 
and foreign countries, and from the charter of its vessels, which 
was for the same purpose. This transportation was an act of in¬ 
terstate and foreign commerce. It was the carrying on of such 
commerce. It was that, and nothing else. In view of the decisions 
of this court, it cannot be pretended that the state could constitu¬ 
tionally regulate or interfere with that commerce itself. But taxing 
is one of the forms of regulation. It is one of the principal forms. 
Taxing the transportation, either by its tonnage or its distance, or 
by the number of trips performed, or in any other way, would 
certainly be a regulation of the commerce, a restriction upon it, a 
burden upon it. Clearly, this could not be done by the state with¬ 
out interfering with the power of Congress. Foreign commerce 
has been fully regulated by Congress, and any regulations imposed 
by the states upon that branch of commerce would be a palpable 
interference. If Congress has not made any express regulations. 



COMMERCIAL POWERS 


159 


with regard to interstate commerce, its inaction, as we have often 
held, is equivalent to a declaration that it shall be free in all cases 
where its power is exclusive; and its power is necessarily exclu¬ 
sive whenever the subject-matter is national in its character, and 
properly admits of only one uniform system. See the cases col¬ 
lected in Robbins v. Shelby Taxing-Dist., 120 U. S. 489, 492, 493, 
7 Sup. Ct. 592, 30 L. Ed. 694. Interstate commerce carried on by 
ships on the sea is surely of this character. 

If, then, the commerce carried on by the plaintiff in error in this 
case could not be constitutionally taxed by the state, could the 
fares and freights received for transportation in carrying on that 
commerce be constitutionally taxed? If the state cannot tax the 
transportation, may it, nevertheless, tax the fares and freights re¬ 
ceived therefor? Where is the difference? Looking at the sub¬ 
stance of things, and not at mere forms, it is very difficult to see 
any difference. The one thing seems to be tantamount to the other. 
It would seem to be rather metaphysics than plain logic for the 
state officials to say to the company: “We will not tax you for the 
transportation you perform, but we will tax you for what you get 
for performing it.’^ Such a position can hardly be said to be based 
on a sound method of reasoning. * * * Qf ^v^hat use would it 

be to the ship-owner, in carrying on interstate and foreign com¬ 
merce, to have the right of transporting persons and goods free 
from state interference if he had not the equal right to charge for 
such transportation without such interference? The very object 
of his engaging in transportation is to receive pay for it. If the 
regulation of the transportation belongs to the power of Congress 
to regulate commerce, the regulation of fares and freights receiv¬ 
able for such transportation must equally belong to that power; 
and any burdens imposed by the state on such receipts must be in 
conflict with it. To apply the language of Chief Justice Marshall, 
fares and freights for transportation in carrying on interstate or 
foreign commerce are as much essential ingredients of that com¬ 
merce as transportation itself. * * * 

[After discussing the Case of the State Freight Tax, 15 Wall. 
232, 21 L. Ed. 146, which held invalid, as applied to interstate traf¬ 
fic, a Pennsylvania tax of several cents a ton upon all freight car¬ 
ried in the state:] If this case stood alone, we should have no hesi¬ 
tation in saying that it would entirely govern the one before us; 
for, as before said, a tax upon fares and freights received for 
transportation is virtually a tax upon the transportation itself. But 
at the same time that the Case of State Freight Tax was decided 
[another case], that of State Tax on Railway Gross Receipts, was 
also decided, and the opinion was delivered by the same member of 
the court. 15 Wall. 284, 21 L. Ed. 164. * * * [This case in¬ 
volved a state tax of % per cent, upon all the gross receipts of 


160 


POWERS OP CONGRESS 


transportation companies incorporated in Pennsylvania, payable 
semi-annually.] The same line of argument was taken at the bar 
as in the other case. This court, however, held the tax to be con¬ 
stitutional. The grounds on which the opinion was based, in or¬ 
der to distinguish this case from the preceding one, were two: 

First, that the tax, being collectible only once in six months, was 
laid upon a fund which had become the property of the company, 
mingled with its other property, and incorporated into the general 
mass of its property, possibly expended in improvements or other¬ 
wise invested. The case is likened, in the opinion, to that of tax¬ 
ing goods which have been imported after their original packages 
have been broken, and after they have been mixed with the mass of 
property in the country, which, it was said, are conceded in Brown 
V. Maryland [12 Wheat. 419, 6 L. Ed. 678] to be taxable. This 
reasoning seems to have much force. But is the analogy to the 
case of imported goods as perfect as is suggested? When the 
latter become mingled with the general mass of property in the 
state, they are not followed and singled out for taxation as im¬ 
ported goods, and by reason of their being imported. If they were, 
the tax would be as unconstitutional as if imposed upon them while 
in the original packages. * * * [Referring to Welton v. Mis¬ 

souri, ante, p. 155.] The tax m the present case is laid upon the 
gross receipts for transportation as such. Those receipts are fol¬ 
lowed, and caused to be accounted for by the company dollar for 
dollar. It is those specific receipts, or the amount thereof (which 
is the same thing), for which the company is called upon to pay the 
tax. They are taxed, not only because they are money or its value, 
but because they were received for transportation. No doubt a 
shipowner, like any other citizen, may be personally taxed for the 
amount of his property or estate, without regard to the source 
from which it was derived, whether from commerce or banking 
or any other employment. But that is an entirely different thing 
from laying a special tax upon his receipts in a particular employ¬ 
ment. If such a tax is laid, and the receipts taxed are those de¬ 
rived from transporting goods and passengers in the way of inter¬ 
state or foreign commerce, no matter when the tax is exacted, 
whether at the time of realizing the receipts, or at the end of every 
six months or a year, it is an exaction aimed at the commerce 
itself, and is a burden upon it, and seriously affects it. A review 
of the question convinces us that the first ground on which the 
decision in State Tax on Railway Gross Receipts was placed is 
not tenable; that it is not supported by anything decided in Brown 
V. Maryland; but, on the contrary, that the reasoning in that case 
is decidedly against it. 

The second ground on which the decision referred to was based 
was that the tax was upon the franchise of the corporation granted 


COMMERCIAL POWERS 


161 


to it by the state. We do not think that this can be affirmed in the 
present case. It certainly could not have been intended as a tax 
on the corporate franchise, because, by the terms of the act, it was 
laid equally on the corporations of other states doing business in 
Penrisylvania. If intended as a tax on the franchise of doing 
business,—which in this case is the business of transportation in 
carrying on interstate and foreign commerce,—it would clearly be 
unconstitutional. * * * court in the case 

of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 
826, 29 L. Ed. 158, that interstate commerce carried on by corpo¬ 
rations is entitled to the same protection against state exactions 
which is given to such commerce when carried on by individuals. 
In that case [a Pennsylvania tax was held invalid which] was laid 
upon the capital stock of a ferry company incorporated by New 
Jersey, and engaged in the business of transporting passengers and 
freight between Camden, in New Jersey, and the city of Phila¬ 
delphia. * It is hardly necessary to add that the tax on 

the capital stock of the New Jersey Company, in that case, was de¬ 
cided to be unconstitutional, because, as the corporation was a for¬ 
eign one, the tax could only be construed as a tax for the privilege 
or franchise of carrying on its business, and that business was inter¬ 
state commerce. 

The decision in this case, and the reasoning on which it is 
founded, so far as they relate to the taxation of interstate commerce 
carried on by corporations, apply equally to domestic and foreign 
corporations. No doubt, the capital stock of the former, regarded 
as inhabitants of the state, or their property, may be taxed as other 
corporations and inhabitants are, provided no discrimination be 
made against them as corporations carrying on foreign or interstate 
commerce, so as to make the tax, in effect, a tax on such commerce. 
But their business as carriers in foreign or interstate commerce 
cannot be taxed by the state under the plea that they are exercising 
a franchise. * * * 

Can the tax in this case be regarded as an income tax? And, if 
it can, does that make any difference as to its constitutionality? 

* * * Conceding, however, that an income tax may be imposed 

on certain classes of the community, distinguished by the charac¬ 
ter of their occupations, this is not an income tax on the class to 
which it refers, but a tax on their receipts for transportation only. 

* * * It is unnecessary, therefore, to discuss the question which 

would arise if the tax were properly a tax on income. * * 

The corporate franchises, the property, the business, the income 
of corporations created by a state may undoubtedly be taxed by 
the state; but, in imposing such taxes, care should be taken not to 
interfere with or hamper, directly or by indirection, interstate or 

Hall Cases Const.L.—11 


162 


POWERS OP CONGRESS 


foreign commerce, or any other matter exclusively within the ju¬ 
risdiction of the federal government. * ♦ ♦ 

Judgment reversed. 


ALLEN V. PULLMAN’S PALACE CAR COMPANY. 

(Supreme Court of United States, 1903. 191 U. S. 171, 24 Sup. Ct 39, 48 L. 

Ed. 134.) 

[Error to the Circuit Court of the United States for the Middle 
District of Tennessee. The Pullman Company sued Allen, the 
comptroller of Tennessee, to recover back taxes paid by it under 
protest for the years 1887 to 1893. From a judgment in its favor, 
Allen took this writ. The yearly gross receipts of the company 
from interstate business extending into the state were $500,000. 
The similar receipts from its purely local business in the state were 
$25,000. Other facts appear in the opinion.] 

Mr. Justice Day. The taxes in controversy were levied under 
certain revenue laws of the state of Tennessee. Those for the years 
1887 and 1888 provided: “That the rate of taxation on the following 
privileges shall be as follows: Sleeping cars: Each company doing 
business in the state, on each car, per annum, $5(X).” Section eight 
of the act provided: “That any and all parties, firms, or corpora¬ 
tions exercising any of the foregoing privileges must pay this tax, 
as set forth in this act, for the exercise of such privilege, whether 
they make a business of it or not.” 

The Tennessee act of 1877, imposing a tax upon the running of 
sleeping cars, was before this court for consideration in the case of 
Pickard v. Pullman Southern Car Co., 117 U. S. 34, 29 L. Ed. 785, 6 
Sup. Ct. 635. * * * 

It was [there] held that the tax was a burden upon interstate 
commerce, and void because of the exclusive power of Congress to 
regulate commerce between the states. Unless the statute now 
under consideration can be distinguished from the one then con¬ 
strued, the Pickard Case is decisive of the present case. * * * 

In the act of 1877 the running and using of sleeping cars on rail¬ 
roads in the state, when the cars are not owned by the railroads 
upon which they are run, is declared to be a privilege. Under the 
act of 1887, the tax is specifically imposed upon a privilege. Under 
the act of 1877, the tax imposed was $50 for each car or coach used 
or run over the road. Under the act of 1887, each company doing 
business in the state is required to pay $500 per annum for the 
same privilege. The distinction, except in the amount of annual 
tax exacted, is without substantial difference. Under the earlier 
act the tax is required for the privilege of running and using sleep¬ 
ing cars on railroads not owning the cars. In the later act it is en¬ 
acted for the privilege of doing business in the state. This business 



COMMERCIAL POWERS 


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consists of running sleeping cars upon railroads not owning the 
cars, and is precisely the privilege to be paid for under the first 
act, neither more nor less. In neither act is any distinction at¬ 
tempted between local or through cars or carriers of passengers. 
The railroads upon which the cars are run are lines traversing the 
state, but not confined to its limits. The cars of the Pullman Com¬ 
pany run into and beyond the state as well as between points with¬ 
in the state. The act in its terms applies to cars running through 
the state as well as those whose operation is wholly intrastate. 
It applies to all alike, and requires payment for the privilege of 
running the cars of the company, regardless of the fact whether 
used in interstate traffic or in that which is wholly within the bor¬ 
ders of the state. There is no decision of the supreme court of 
Tennessee limiting the act in its operation to intrastate traffic. 
* * 

The statute now under consideration requires payment of the 
sum exacted for the privilege of doing any business, when the 
principal thing to be done is interstate traffic. We are not at lib¬ 
erty to read into the statute terms not found therein or necessarily 
implied, with a view to limiting the tax to local business, which the 
legislature, in the terms of the act, impose upon the entire business 
of the company. We are of opinion that taxes exacted under the 
act of 1887 are void as an attempt by the state to impose a burden 
upon interstate commerce. 

Other considerations apply in the construction of the act of 1889, 
under which, or acts identical in terms, taxes were collected from 
1889 to 1893, inclusive. It provides: “Sec. 4. The rate of taxation 
on the following privileges shall be as follows, per annum: ^ * 

Sleeping car companies (in lieu of all other taxes except ad valorem 
tax) for one or more passengers taken up at one point in this state 
and delivered at another point in this state, and transported wholly 
within the state, per annum $3,000.” Its terms apply strictly to 
business done in the transportation of passengers taken up at one 
point in the state and transported wholly within the state to an¬ 
other point therein. It is not necessary to review the numerous 
cases in this court in which attempts by the states to control or 
regulate interstate commerce have been the subject of considera¬ 
tion. While they show a zealous care to preserve the exclusive 
right of Congress to regulate interstate traffic, the corresponding 
right of the state to tax and control the internal business of the 
state, although thereby foreign or interstate commerce may be in¬ 
directly affected, has been recognized with equal clearness. In the 
late case of Osborne v. Florida, 164 U. S. 650, 41 L. Ed. 586, 17 
Sup. Ct. 215, Mr. Justice Peckham, speaking for the court, said: 
“It has never been held, however, that when the business of the 
company, which is wholly within the state, is but a mere incident 


164 


POWERS OP CONGRESS 


to its interstate business, such fact would furnish any obstacle to 
the valid taxation by the state of the business of the company which 
is entirely local. So long as the regulation as to the license or tax¬ 
ation does not refer to, and is not imposed upon, the business of 
the company which is interstate, there is no interference with that 
commerce by the state statute."’ 

Granting that the right exists whereby a state may impose privi¬ 
lege or license fees upon business carried on wholly within the 
state, it is argued that the tax of $3,000 per annum, collected for 
carrying one or more local passengers on cars operating within the 
state, is assessed upon traffic which bears such small proportion 
to the entire business of the company within the state that it could 
not have been levied in good faith upon purely local business, and 
is but a thinly disguised attempt to tax the privilege of interstate 
traffic. If the payment of this tax was compulsory upon the com¬ 
pany before it could do a carrying business within the state, and 
the burden of its payment, because of the minor character of the 
domestic traffic, rested mainly upon the receipts from interstate 
traffic, there would be much force in this objection. Upon this 
proposition we are unable to distinguish this case from Pullman 
Co. V. Adams, 189 U. S. 420, 47 U. Ed. 877, 23 Sup. Ct. 494, de¬ 
cided at the last term, wherein it was held that the privilege tax 
imposed by the state of Mississippi, upon each car carrying passen¬ 
gers from one point in the state to another therein, was a valid 
tax, notwithstanding the fact that the company offered to show 
that its receipts from the carrying of the passengers named did not 
equal the expenses chargeable against such receipts. This conclu¬ 
sion was based upon the right of the company to abandon the busi¬ 
ness if it saw fit. It was urged that under the Constitution of 
Mississippi the Pullman Company was a common carrier, required 
to carry passengers; and therefore could not be taxed for the privi¬ 
lege of doing that which it was compelled to do; but in view of a 
decision of the supreme court of Mississippi, sustaining the tax, 
it was assumed that no such objection existed under the state Con¬ 
stitution. Speaking upon this subject, Mr. Justice Holmes, deliv¬ 
ering the opinion of the court, said: 'Tf the clause of the state 
Constitution referred to were held to impose the obligation sup¬ 
posed, and to be valid, we assume, without discussion, that the tax 
would be invalid. For then it would seem to be true that the 
state Constitution and the statute combined would impose a burden 
on commerce between the states analogous to that which was held 
bad in Crutcher v. Kentucky, 141 U. S. 47, 35 L. Ed. 649, 11 Sup. 
Ct. 851. On the other hand, if the Pullman Company, whether 
called a common carrier or not, had the right to choose between 
what points it would carry, and therefore to give up the carriage 
of passengers from one point to another within the state, the case 


COMMERCIAL POWERS 


165 


is governed by Osborne v. Florida, 164 U. S. 650, 41 L. Ed. 586, 17 
Sup. Ct. 214. The company cannot complain of being taxed for the 
privilege of doing a local business which- it is free to renounce. 
Both parties agree that the tax is a privilege tax.^^ * jh 

[Under section 3046, Shannon’s Tenn. Code, it was held that 
Tennessee had abrogated the common law rule requiring inn-keep¬ 
ers and passenger carriers to serve all, and that the Pullman Com¬ 
pany was under no obligation to receive passengers in the state.] 
It follows that a tax imposed upon domestic business, under the 
circumstances shown, cannot be a burden upon interstate com¬ 
merce in such sense as will invalidate it. Under the judgment of 
the court below, the Pullman Company was permitted to recover 
for license taxes levied under both acts. In so far as it permitted 
a recovery for taxes under the act of 1889 and identical laws of 
other years, the judgment should be modified. 


GALVESTON, H. & S. A. RY. CO. v. TEXAS. 

(Supreme Court of United States, 1908. 210 U. S. 217, 28 Sup. Ct. 638, 52 L. 

Ed. 1031.) 

[Error to the Supreme Court of Texas. A state statute imposed 
upon each railroad, whose lines lay wholly within the state, an 
annual tax “equal to 1 per cent, of its gross receipts.” In an action 
by the state to collect such taxes this statute was upheld by the 
state courts.] 

Mr. Justice HolmeJS. * * * The lines of the railroads con¬ 

cerned are wholly within the state, but they connect with other 
lines, and a part, in some instances much the larger part, of their 
gross receipts is derived from the carriage of passengers and freight 
coming from, or destined to, points without the state. In view of 
this portion of their business, the railroads contend that the case 
is governed by Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 
122 U. S. 326, 30 L. Ed. 1200, 1 Interst. Com. Rep. 308, 7 Sup. Ct. 
1118. The counsel for the state rely upon Maine v. Grand Trunk 
R. Go., 142 U. S. 217, 35 L. Ed. 994, 3 Interst. Com. Rep. 807, 12 
Sup. Ct. 121, 163, and maintain, if necessary, that the later over¬ 
rules the earlier case. 

In Philadelphia & S. Mail S. S. Co. v. Pennsylvania, supra, it 
was decided that a tax upon the gross receipts of a steamship cor¬ 
poration of the state, when such receipts were derived from com¬ 
merce between the states and with foreign countries, was uncon¬ 
stitutional. We regard this decision as unshaken and as stating 
established law. * * * Maine v. Grand Trunk R. Co., supra, 

the authority of the Philadelphia Steamship Company Case was 
accepted without question, and the decision was justified by the 



166 


POWERS OP CONGRESS 


majority as not in any way qualifying or impairing it. The validity 
of the distinction was what divided the court. 

It being once admitted, as of course it must be, that not every 
law that affects commerce among the states is a regulation of it in 
a constitutional sense, nice distinctions are to be expected. Regu¬ 
lation and commerce among the states both are practical rather 
than technical conceptions, and, naturally, their limits must be 
fixed by practical lines. As the property of companies engaged in 
such commerce may be taxed (Pullman’s Palace Car Co. v. Penn¬ 
sylvania, 141 U. S. 18, 35 L. Ed. 613, 3 Interst. Com. Rep. 595, 11 
Sup. Ct. 876), and may be taxed at its value as it is, in its organic 
relations, and not merely as a congeries of unrelated items, taxes 
on such property have been sustained that took account of the 
augmentation of value from the commerce in which it was engaged. 
Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. Ed, 
683, 17 Sup. Ct. 305; Adams Exp. Co. v. Kentucky, 166 U. S. 171, 
41 L. Ed. 960, 17 Sup. Ct. 527; Fargo v. Hart, 193 U. S. 490, 499, 
48 E. Ed. 761, 765, 24 Sup. Ct. 498. So it has been held that a tax 
on the property and business of a railroad operated within the state 
might be estimated prima facie by gross income, computed by 
adding to the income derived from business within the state the 
proportion of interstate business equal to the proportion between 
the road over which the business was carried within the state to 
the total length of the road over which it was carried. Wisconsin 
& M. R. Co. V. Powers, 191 U. S. 379, 48 E. Ed. 229, 24 Sup. Ct. 
107. 

Since the commercial value of property consists in the expecta¬ 
tion of income from it, and since taxes ultimately, at least, in the 
long run, come out of income, obviously taxes called taxes on prop¬ 
erty, and those called taxes on income or receipts, tend to run into 
each other somewhat as fair value and anticipated profits run into 
each other in the law of damages. The difficulty of distinguishing 
them became greater when it was decided, not without much de¬ 
bate and difference of opinion, that interstate carriers’ property 
might be taxed as a going concern. In Wisconsin & M. R. Co. v. 
Powers, supra, the measure of property by income purported only 
to be prima facie valid. But the extreme case came earlier. In 
Maine v. Grand Trunk R. Co. supra, “an annual excise tax for the 
privilege of exercising its franchise” was levied upon everyone op¬ 
erating a railroad in the state, fixed by percentages, varying up to 
a certain limit, upon the average gross receipts per mile multiplied 
by a number of miles within the state, when the road extended 
outside. This seems at first sight like a reaction from the Phila¬ 
delphia & Southern Mail Steamship Company Case. But it may 
not have been. The estimated gross receipts per mile may be said 
to have been made a measure of the value of the property per mile. 


COMMERCIAL POWERS 


1G7 


That the effort of the state was to reach that value, and not to 
fasten on the receipts from transportation as such, was shown by 
the fact that the scheme of the statute was to establish a system. 
The buildings of the railroad and its lands and fixtures outside of 
its right of way were to be taxed locally, as other property was 
taxed, and this excise with the local tax were to be in lieu of all 
taxes. The language shows that the local tax was not expected to 
include the additional value gained by the property being part of a 
going concern. That idea came in later. The excise was an at¬ 
tempt to reach that additional value. The two taxes together fairly 
may be called a commutation tax. See Ficklen v. Taxing District, 
145 U. S. 1, 23, 36 L. Ed. 601, 607, 4 Interst. Com. Rep. 79, 12 Sup. 
Ct. 810; Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 697, 39 L. 
Ed. 311, 316, 5 Interst. Com. Rep. 1, 15 Sup. Ct. 268, 360; Mc¬ 
Henry V. Alford, 168 U. S. 651, 670, 671, 42 L. Ed. 614, 621, 18 Sup. 
Ct. 242. 

“By whatever name the exaction may be called, if it amounts to 
no more than the ordinary tax upon property or a just equivalent 
therefor, ascertained by reference thereto, it is not open to attack as 
inconsistent with the Constitution.” Postal Teleg. Cable Co. v. 
Adams, supra. See New York, E. E. & W. R. Co. v. Pennsylvania, 
158 U. S. 431, 438, 439, 39 L. Ed. 1043, 1045, 1046, 15 Sup. Ct. 896. 
The question is whether this is such a tax. It appears sufficiently, 
perhaps from what has been said, that we are to look for a practical 
rather than a logical or philosophical distinction. The state must 
be allowed to tax the property, and to tax it at its actual value 
as a going concern. On the other hand, the state cannot tax the 
interstate business. The two necessities hardly admit of an abso¬ 
lute logical reconciliation. Yet the distinction is not without sense. 
When a legislature is trying simply to value property, it is less 
likely to attempt or to effect injurious regulation than when it is 
aiming directly at the receipts from interstate commerce. A prac¬ 
tical line can be drawn by taking the whole scheme of taxation 
into account. That must be done by this court as best it can. Nei¬ 
ther the state courts nor the legislatures, by giving the tax a par¬ 
ticular name or by the use of some form of words, can take away 
our duty to consider its nature and effect. If it bears upon com¬ 
merce among the states so directly as to amount to a regulation 
in a relatively immediate way, it will not be saved by name or form. 
Stockard v. Morgan, 185 U. S. 27, 37, 46 L. Ed. 785, 794, 22 Sup. Ct. 
576; Asbell v. Kansas, 209 U. S. 251, 254, 256, 28 Sup. Ct. 485, 52 
E. Ed. 778, 14 Ann. Cas. 1101. 

We are of opinion that the statute levying this tax does amount 
to an attempt to regulate commerce among the states. The distinc¬ 
tion between a tax “equal to” 1 per cent, of gross receipts, and a 
tax of 1 per cent, of the same, seems to us nothing, except where 


168 


POWERS OF CONGRESS 


the former phrase is the index of an actual attempt to reach the 
property and to let the interstate traffic and the receipts from it 
alone. We find no such attempt or anything to qualify the plain 
inference from the statute, taken by itself. On the contrary, we 
rather infer from the judgment of the state court and from the 
argument on behalf of the state that another tax on the property 
of the railroad is upon a valuation of that property, taken as a going 
concern. This is merely an effort to reach the gross receipts, not 
even disguised by the name of an occupation tax, and in no way 
helped by the words “equal to.” 

Of course, it does not matter that the plaintiffs in error are do¬ 
mestic corporations, or that the tax embraces indiscriminately 
gross receipts from commerce within as well as outside of the state. 

Judgment reversed. 

[Harean, J., gave a dissenting opinion, in which concurred Fue- 
eer, C. J., and White and McKenna, JJ.] 


COE V. ERROE. 

(Supreme Court of United States, 1886. 116 U. S. 517, 6 Sup. Ct. 475, 29 L. 

Ed. 715.) 

[Error to the Supreme Court of New Hampshire. The Andro¬ 
scoggin river, from Maine into New Hampshire and back through 
Maine to the sea, had long been used as a public highway for the 
floatage of timber. Coe, a resident of Maine, had cut certain logs 
in Maine and floated them down the river on their way through 
New Hampshire to Lewiston, Maine. These logs were detained by 
low water at Errol, New Hampshire, for nearly a year, and while 
so detained were taxed by the town of Errol. Such detention by 
low water was in the usual course of such transportation. Other 
logs Coe had cut in New Hampshire and drawn to the shores of 
the river or placed in its tributaries in time of low water, waiting 
for the high water of next spring to carry them on to Lewiston. 
Errol also taxed these. Coe resisted the tax, and the Supreme 
Court of New Hampshire abated the tax on the logs cut in Maine 
but sustained that on the others.] 

Mr. Justice BradeEy. * * * The question for us to consider, 

therefore, is, whether the products of a state (in this case timber 
cut in its forests) are liable to be taxed like other property within 
the state, though intended for exportation to another state, and 
partially prepared for that purpose by being deposited at a place 
of shipment, such products being owned by persons residing in 
another state. ^ * 

[After deciding that the non-residence of the owner does not 
render personal property non-taxable in the state where it is lo- 



COMMERCIAL POWERS 


1G9 


cated:] We recur, then, to a consideration of the question freed 
from this limitation: Are the products of a state, though intended 
for exportation to another state, and partially prepared for that 
purpose by being deposited at a place or port of shipment within 
the state, liable to be taxed like other property within the state? 
Do the owner’s state of mind in relation to the goods, that is, his 
intent to export them, and his partial preparation to do so, exempt 
them from taxation? This is the precise question for solution. 

This question does not present the predicament of goods in 
course of transportation through a state, though detained for a 
time within the state by low water or other causes of delay, as 
was the case of the logs cut in the state of Maine, the tax on which 
was abated by the Supreme Court of New Hampshire. Such 
goods are already in the course of commercial transportation, and 
are clearly under the protection of the Constitution. And so, we 
think, would the goods in question be when actually started in the 
course of transportation to another state, or delivered to a carrier 
for such transportation. There must be a point of time when they 
cease to be governed exclusively by the domestic law and begin 
to be governed and protected by the national law of commercial 
regulation, and that moment seems to us to be a legitimate one 
for this purpose, in which they commence their final movement for 
transportation from the state of their origin to that of their des¬ 
tination. When the products of the farm or the forest are collect¬ 
ed and brought in from the surrounding country to a town or 
station serving as an entrepot for that particular region, whether 
on a river or a line of railroad, such products are not yet exports, 
nor are they in process of exportation, nor is exportation begun 
until they are committed to the common carrier for transportation 
out of the state to the state of their destination, or have started on 
their ultimate passage to that state. Until then it is reasonable 
to regard them as not only within the state of their origin, but 
as a part of the general mass of property of that state, subject to 
its jurisdiction, and liable to taxation there, if not taxed by rea¬ 
son of their being intended for exportation, but taxed without any 
discrimination, in the usual way and manner in which such prop¬ 
erty is taxed in the state. 

Of course they cannot be taxed as exports; that is to say, they 
cannot be taxed by reason or because of their exportation or in¬ 
tended exportation; for that would amount to laying a duty on 
exports, and would be a plain infraction of the Constitution, which 
prohibits any state, without the consent of Congress, from laying 
any imposts or duties on imports or exports; and, although it has 
been decided. Woodruff v. Parham, 8 Wall. 123, 19 L. Ed. 382, 
that this clause relates to imports from, and exports to, foreign 
countries, yet when such imposts or duties are laid on imports or 
exports from one state to another, it cannot be doubted that such 


170 


POWERS OF CONGRESS 


an imposition would be a regulation of commerce among the 
states^ and, therefore, void as an invasion of the exclusive power 
of Congress. See Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. 
454, 29 Iv. Ed. 691, decided at the present term,^ and cases cited in 
the opinion in that case. But if such goods are not taxed as ex¬ 
ports, nor by reason of their exportation, or intended exportation, 
but are taxed as part of the general mass of property in the state, 
at the regular period of assessment for such property and in the 
usual manner, they not being in course of transportation at the 
time, is there any valid reason why they should not be taxed? 
Though intended for exportation, they may never be exported; 
the owner has a perfect right to change his mind; and until actual¬ 
ly put in motion, for some place out of the state, or committed 
to the custody of a carrier for transportation to such place, why 
may they not be regarded as still remaining a part of the general 
mass of property in the state? If assessed in an exceptional time 
or manner, because of their anticipated departure, they might well 
be considered as taxed by reason of their exportation or intended 
exportation; but if assessed in the usual way, when not under mo¬ 
tion or shipment, we do not see why the assessment may not be 
valid and binding. 

The point of time when state jurisdiction over the commodities 
of commerce begins and ends is not an eas}^ matter to designate or 
define, and yet it is highly important, both to the shipper and to 
the state, that it should be clearly defined so as to avoid all am¬ 
biguity or question. In regard to imports from foreign countries, 
it was settled in the case of Brown v. Maryland, 12 Wheat. 419, 6 
E. Ed. 678, that the state cannot impose any tax or duty on such 
goods so long as they remain the property of the importer, and 
continue in the original form or packages in which they were im¬ 
ported; the right to sell without any restriction imposed by the 
state being a necessary incident of the right to import without 
such restriction. This rule was deemed to be the necessary result 
of the prohibitory clause of the Constitution, which declares that 
no state shall lay any imposts or duties on imports or exports. 
The law of Maryland, which was held to be repugnant to this 
clause, required the payment of a license tax by all importers be¬ 
fore they were permitted to sell their goods. This law was also 
considered to be an infringement of the clause which gives to Con¬ 
gress the power to regulate commerce. This court, as before stat¬ 
ed, has since held that goods transported from one state to another 
are not imports or exports within the meaning of the prohibitory 
clauses before referred to; and it has also held that such goods, 
having arrived at their place of destination, may be taxed in the 
state to which they are carried, if taxed in the same manner as 
other goods are taxed, and not by reason of their being brought 
into the state from another state, nor subjected in any way to un- 


COMMERCIAL POWERS 


171 


favorable discrimination. Woodruff v. Parham, 8 Wall. 123, 19 L. 
Ed. 382; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. 
Ed. 257. 

But no definite rule has been adopted with regard to the point of 
time at which the taxing power of the state ceases as to goods ex¬ 
ported to a foreign country or to another state. What we have al¬ 
ready said, however, in relation to the products of a state intended 
for exportation to another state will indicate the view which seems 
to us the sound one on that subject, namely, that such goods do 
not cease to be part of the general mass of property in the state, 
subject, as such, to its jurisdiction, and to taxation in the usual 
way, until they have been shipped, or entered with a common car¬ 
rier for transportation to another state, or have been started upon 
such transportation in a continuous route or journey. We think 
that this must be the true rule on the subject. It seems to us un¬ 
tenable to hold that a crop or a herd is exempt from taxation mere¬ 
ly because it is, by its owner, intended for exportation. If such 
were the rule in many states there would be nothing but the lands 
and real estate to bear the taxes. Some of the Western states 
produce very little except wheat and corn, most of which is in¬ 
tended for export; and so of cotton in the Southern states. Cer¬ 
tainly, as long as these products are on the lands which produce 
them, they are part of the general property of the state. And so 
we think they continue to be until they have entered upon their 
final journey for leaving the state and going into another state. It 
is true, it was said in the case of The Daniel Ball, 10 Wall. 557, 
565, 19 E. Ed. 999: ^Whenever a commodity has begun to move 
as an article of trade from one state to another, commerce in that 
commodity between the states has commenced.” But this move¬ 
ment does not begin until the articles have been shipped or started 
for transportation from the one state to the other. The carrying 
of them in carts or other vehicles, or even floating them, to the 
depot where the journey is to commence, is no part of that jour¬ 
ney. That is all preliminary work, performed for the purpose of 
putting the property in a state of preparation and readiness for 
transportation. Until actually launched on its way to another 
state, or committed to a common carrier for transportation to such 
state, its destination is not fixed and certain. It may be sold or 
otherwise disposed of within the state, and never put in course of 
transportation out of the state. Carrying it from the farm, or the 
forest, to the depot, is only an interior movement of the property, 
entirely within the state, for the purpose, it is true, but only for 
the purpose, of putting it into a course of exportation; it is no 
part of the exportation itself. Until shipped or started on its final 
journey out of the state its exportation is a matter altogether in 
fieri, and not at all a fixed and certain thing. 

The application of these principles to the present case is obvi- 


172 


POWERS OF CONGRESS 


ous. The logs which were taxed, and the tax on which was not 
abated by the Supreme Court of New Hampshire, had not, when 
so taxed, been shipped or started on their final voyage or journey 
to the state of Maine. They had only been drawn down from 
Wentworth’s location to Errol, the place from which they were 
to be transported to Lewiston in the state of Maine. There they 
were to remain until it should be convenient to send them to their 
destination. They come precisely within the character of prop¬ 
erty which, according to the principles herein laid down, is tax¬ 
able. But granting all this, it may still be pertinently asked. How 
can property thus situated, to wit, deposited or stored at the place 
of entrepot for future exportation, be taxed in the regular way as 
part of the property of the state? The answer is plain. It can be 
taxed as all other property is taxed, in the place where it is found, 
if taxed, or assessed for taxation, in the usual manner in which 
such property is taxed; and not singled out to be assessed by itself 
in an unusual and exceptional manner because of its destination. 
If thus taxed, in the usual way that other similar property is taxed, 
and at the same rate, and subject to like conditions and regula¬ 
tions, the tax is valid. In other words, the right to tax the prop¬ 
erty being founded on the hypothesis that it is still a part of the 
general mass of property in the state, it must be treated in all re¬ 
spects as other property of the same kind is treated. ^ ^ ^ 

Judgment affirmed. 


ROBBINS V. SHELBY COUNTY TAXING DISTRICT. 

(Supreme Court of United States, 1887. 120 U. S. 489, 7 Sup. Ct. 592, 30 L. 

Ed. 694.) 

[Error to the Supreme Court of Tennessee. A state statute re¬ 
quired all drummers and persons not having a licensed house of 
business in the Taxing District (the city of Memphis), offering for 
sale goods by sample, to pay a license tax of $25 a month. Rob¬ 
bins was convicted of selling goods by sample without a license 
in Memphis, for a firm in Cincinnati, Ohio, and this was affirmed 
by the state supreme court.] 

Mr. Justice BradeDy. * * * The principal question argued 

before the supreme court of Tennessee was as to the constitution¬ 
ality of the act which imposed the tax on drummers; and the 
court decided that it was constitutional and valid. ♦ * * ([Cer¬ 

tain principles have been already established by the decisions of 
this court, which will conduct us to a satisfactory decision. 
Among those principles are the following: 

1. The Constitution of the United States having given to Con¬ 
gress the power to regulate commerce, not only with foreign na¬ 
tions, but among the several states, that power is necessarily ex« 



COMMERCIAL POWERS 


173 


elusive whenever the subjects of it are national in their character, 
or admit only of one uniform system, or plan of regulation. This 
was decided in the case of Cooley v. Board of Wardens of the Port 
of Philadelphia, 12 How. 299, 319, 13 L. Ed. 996, and was virtually 
involved in the case of Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, 
and has been confirmed in many subsequent cases. * * * 

2. Another established doctrine of this court is that, where the 
power of Congress to regulate is exclusive, the failure of Congress 
to make express regulations indicates its will that the subject shall 
be left free from any restrictions or impositions; and any regula¬ 
tion of the subject by the states, except in matters of local concern 
only, as hereafter mentioned, is repugnant to such freedom. This 
was held by Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 
222, 6 L. Ed. 23, by Mr. Justice Grier in the Passenger Cases, 7 
How. 283, 462, 12 E. Ed. 702, and has been affirmed in subsequent 
cases. State Freight Tax Cases, 15 Wall. 232, 279, 21 L. Ed. 146; 
Railroad Co. v. Husen, 95 U. S. 465, 469, 24 L. Ed. 527; Welton 
V. Missouri, 91 U. S. 275, 282, 23 L. Ed. 347; County of Mobile v. 
Kimball, 102 U. S. 691, 697, 26 L. Ed. 238; Brown v. Houston, 114 
U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 257; Walling v. Mich¬ 
igan, 116 U. S. 446, 455, 6 Sup. Ct. 454, 29 L. Ed. 691; Pickard v. 
Pullman Palace Car Co., 117 U. S. 34, 6 Sup. Ct. 635, 29 . L. Ed. 
785; Wabash R. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. 
Ed. 244. 

3. It is also an established principle, as already indicated, that 
the only way in which commerce between the states can be legit¬ 
imately affected by state laws is when, by virtue of its police pow¬ 
er, and its jurisdiction over persons and property within its limits, 
a state provides for the security of the lives, limbs, health, and 
comfort of persons and the protection of property, or when it does 
those things which may otherwise incidentally affect commerce; 
such as the establishment and regulation of highways, canals, rail¬ 
roads, wharves, ferries, and other commercial facilities; the pas¬ 
sage of inspection laws to secure the due quality and measure of 
products and commodities; the passage of laws to regulate or re¬ 
strict the sale of articles deemed injurious to the health or morals 
of the community; the imposition of taxes upon persons residing 
within the state or belonging to its population, and upon avoca¬ 
tions and employments pursued therein, not directly connected 
with foreign or interstate commerce, or with some other employ¬ 
ment or business exercised under authority of the Constitution 
and laws of the United States, and the imposition of taxes upon 
all property within the state, mingled with and forming part of 
the great mass of property therein. But, in making such internal 
regulations, a state cannot impose taxes upon persons passing 
through the state, or coming into it merely for a temporary pur¬ 
pose, especially if connected with interstate or foreign commerce; 


174 


POWERS OP CONGRESS 


nor can it impose such taxes upon property imported into the state 
from abroad, or from another state, and not yet become part of the 
common mass of property therein; and no discrimination can be 
made by any such regulations adversely to the persons or prop¬ 
erty of other states; and no regulations can be made directly af¬ 
fecting interstate commerce. Any taxation or regulation of the 
latter character would be an unauthorized interference with the 
power given to Congress over the subject. For authorities on this 
last head it is only necessary to refer to those already cited. In a 
word, it may be said that, in the matter of interstate commerce, 
the United States are but one country, and are and must be sub¬ 
ject to one system of regulations, and not to a multitude of sys¬ 
tems. The doctrine of the freedom of that commerce, except as 
regulated by Congress, is so firmly established that it is unneces¬ 
sary to enlarge further upon the subject. 

In view of these fundamental principles, which are to govern 
our decision, we may approach the question submitted to us in the 
present case, and inquire whether it is competent for a state to 
levy a tax or impose any other restriction upon the citizens or in¬ 
habitants of other states for selling or seeking to sell their goods 
in such state before they are introduced therein. Do not such re¬ 
strictions affect the very foundation of interstate trade? How is 
a manufacturer or a merchant of one state to sell his goods in an¬ 
other state, without, in some way, obtaining orders therefor? 
Must he be compelled to send them at a venture, without knowing 
whether there is any demand for them? This may, undoubtedly, 
be safely done with regard to some products for which there is 
always a market and a demand, or where the course of trade has 
established a general and unlimited demand. A raiser of farm 
produce in New Jersey or Connecticut, or a manufacturer of leath¬ 
er or woodenware, may, perhaps, safely take his goods to the city 
of New York, and be sure of finding a stable and reliable market 
for them. But there are hundreds, perhaps thousands, of articles 
which no person would think of exporting to another state without 
first procuring an order for them. It is true, a merchant or manu¬ 
facturer in one state may erect or hire a warehouse or store in an¬ 
other state, in which to place his goods, and await the chances of 
being able to sell them; but this would require a warehouse or 
store in every state with which he might desire to trade. Surely, 
he cannot be compelled to take this inconvenient and expensive 
course. In certain branches of business, it may be adopted with 
advantage. Many manufacturers do open houses or places of busi¬ 
ness in other states than those in which they reside, and send 
their goods there to be kept on sale; but this is a matter of con¬ 
venience, and not of compulsion, and would neither suit the con¬ 
venience nor be within the ability of many others engaged in the 


COMMERCIAL POWERS 


175 


same kinds of business, and would be entirely unsuited to many 
branches of business. In these cases, then, what shall the mer¬ 
chant or manufacturer do, who wishes to sell his goods in other 
states? Must he sit still in his factory or warehouse, and wait for 
the people of those states to come to him? This would be a silly 
and ruinous proceeding. The only other way, and the one, per¬ 
haps, which most extensively prevails, is to obtain orders from 
persons residing or doing business in those other states. But how 
is the merchant or manufacturer to secure such orders? If he 
may be taxed by such states for doing so, who shall limit the tax? 
It may amount to prohibition. To say that such a tax is not a 
burden upon interstate commerce, is to speak at least unadvisedly, 
and without due attention to the truth of things. It may be sug¬ 
gested that the merchant or manufacturer has the post-office at 
his command, and may solicit orders through the mails. We do 
not suppose, however, that any one would seriously contend that 
this is the only way in which his business can be transacted with¬ 
out being amenable to exactions on the part of the state. Be¬ 
sides, why could not the state to which his letters might be sent, 
tax him for soliciting orders in this way, as well as in any other 
way? The truth is, that in numberless instances, the most feasi¬ 
ble, if not the only practicable, way for the merchant or manufac¬ 
turer to obtain orders in other states is to obtain them by personal 
application, either by himself or by some one employed by him 
for that purpose; and in many branches of business he must nec¬ 
essarily exhibit samples for the purpose of determining the kind 
and quality of the goods he proposes to sell, or which the other 
party desires to purchase. But the right of taxation, if it exists at 
all, is not confined to selling by sample. It embraces every act of 
sale, whether by word of mouth only, or by the exhibition of 
samples. If the right exists, any New York or Chicago merchant, 
visiting New Orleans or Jacksonville for pleasure or for his health, 
and casually taking an order for goods to be sent from his ware¬ 
house, could be made liable to pay a tax for so doing, or be con¬ 
victed of a misdemeanor for not having taken out a license. The 
right to tax would apply equally as well to the principal as to his 
agent, and to a single act of sale as to a hundred acts. 

But it will be said that a denial of this power of taxation will in¬ 
terfere with the right of the state to tax business pursuits and 
callings carried on within its limits, and its right to require li¬ 
censes for carrying on those which are declared to be privileges. 
This may be true to a certain extent, but only in those cases in 
which the states themselves, as well as individual citizens, are 
subject to the restraints of the higher law of the Constitution; and 
this interference will be very limited in its operation. It will only 
prevent the levy of a tax, or the requirements of a license, for 


176 


POWERS OF CONGRESS 


making negotiations in the conduct of interstate commerce; and 
it may well be asked where the state gets authority for imposing 
burdens on that branch of business any more than for imposing a 
tax on the business of importing from foreign countries, or even 
on that of postmaster or United States marshal. The mere calling 
the business of a drummer a privilege, cannot make it so. Can the 
state legislature make it a Tennessee privilege to carry on the 
business of importing goods from foreign countries? If not, has 
it any better right to make it a state privilege to carry on inter¬ 
state commerce? It seems to be forgotten in argument that the 
people of this country are citizens of the United States, as well as 
of the individual states, and that they have some rights under the 
Constitution and laws of the former, independent of the latter, and 
free from any interference or restraint from them. To deny to the 
state the power to lay the tax or require the license in question, 
will not, in any perceptible degree, diminish its resources, or its 
just power of taxation. It is very true that, if the goods when 
sold were in the state, and part of its general mass of property, 
they would be liable to taxation; but when brought into the state 
in consequence of the sale, they will be equally liable; so that, in 
the end, the state will derive just as much revenue from them as 
if they were there before the sale. As soon as the goods are in the 
state, and become part of its general mass of property, they will 
become liable to be taxed in the same manner as other property of 
similar character, as was distinctly held by this court in the case of 
Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257. 
When goods are sent from one state to another for sale, or in con¬ 
sequence of a sale, they become part of its general property, and 
amenable to its laws: provided that no discrimination be made 
against them as goods from another state, and that they be not 
taxed by reason of being brought from another state, but only 
taxed in the usual way as other goods are. Brown v. Houston, 
qua supra; Machine Co. v. Gage, 100 U. S. 676, 25 L. Ed. 754. But 
to tax the sale of such goods, or the offer to sell them, before they 
are brought into the state, is a very different thing, and seems to 
us clearly a tax on interstate commerce itself. 

It is strongly urged, as if it were a material point in the case, 
that no discrimination is made between domestic and foreign 
drummers,—those of Tennessee and those of other states; that all 
are taxed alike. But that does not meet the difficulty. Interstate 
commerce cannot be taxed at all, even though the same amount of 
tax should be laid on domestic commerce, or that which is carried 
on solely within the state. This was decided in the case of State 
Freight Tax Cases, 15 Wall. 232, 21 L. Ed. 146. The negotiation 
of sales of goods which are in another state, for the purpose of 
introducing them into the state in which the negotiation is made, 


COMMERCIAL POWERS 


177 


is interstate commerce. A new Orleans merchant cannot be taxed 
there for ordering goods from London or New York, because, in 
the one case, it is an act of foreign, and, in the other, of interstate, 
commerce, both of which are subject to regulation by Congress 
alone. It would not be difficult, however, to show that the tax au¬ 
thorized by the state of Tennessee in the present case is discrim¬ 
inative against the merchants and manufacturers of other states. 
They can only sell their goods in Memphis by the employment of 
drummers and by means of samples; while the merchants and 
manufacturers of Memphis, having regular licensed houses of busi¬ 
ness there, have no occasion for such agents, and, if they had, they 
are not subject to any tax therefor. They are taxed for their li¬ 
censed houses, it is true; but so, it is presumable, are the mer¬ 
chants and manufacturers of other states in the places where they 
reside; and the tax on drummers operates greatly to their dis¬ 
advantage in comparison with the merchants and manufacturers 
of Memphis. And such was undoubtedly one of its objects. This 
kind of taxation is usually imposed at the instance and solicitation 
of domestic dealers as a means of protecting them from foreign 
competition; and in many cases there may be some reason in their 
desire for such protection. But this shows in a still stronger light 
the unconstitutionality of the tax. It shows that it not only op¬ 
erates as a restriction upon interstate commerce, but that it is 
intended to have that effect as one of its principal objects. And if 
a state can, in this way, impose restrictions upon interstate com¬ 
merce for the benefit and protection of its own citizens, we are 
brought back to the condition of things which existed before the 
adoption of the Constitution, and which was one of the principal 
causes that led to it. If the selling of goods by sample, and the 
employment of drummers for that purpose, injuriously affect the 
local interest of the states. Congress, if applied to, will undoubted¬ 
ly make such reasonable regulations as the case may demand. 
And Congress alone can do it; for it is obvious that such regula¬ 
tions should be based on a uniform system applicable to the whole 
country, and not left to the varied, discordant, or retaliatory en¬ 
actments of 40 different states. The confusion into which the 
commerce of the country would be thrown by being subject to 
state legislation on this subject would be but a repetition of the 
disorder which prevailed under the articles of confederation. 

To say that the tax, if invalid as against drummers from other 
states, operates as a discrimination against the drummers of Ten¬ 
nessee, against whom it is conceded to be valid, is no argument, 
because the state is not bound to tax its own drummers; and if 
it does so, while having no power to tax those of other states, it 
acts of its own free will, and is itself the author of such discrimina¬ 
tions. As before said, the state may tax its own internal com- 
Hall Cases Const.L.—12 


178 


POWERS OF CONGRESS 


merce; but that does not give it any right to tax interstate com¬ 
merce. 

Judgment reversed. 

[Waite, C. J., gave a dissenting opinion, in which concurred 
Field and Gray, JJ. It proceeded upon the ground that there was 
no discrimination.] 


SOUTHERN RY. CO. v. KING (1910) 217 U. S. 524, 532-534, 
536, 537, 30 Sup. Ct. 594-597, 54 L. Ed. 868, Mr. Justice Day (up¬ 
holding a Georgia statute requiring the speed of railroad trains to 
be checked at highway crossings) : 

“The rights of the states to pass laws not having the effect to 
regulate or directly interfere with the operations of interstate com¬ 
merce, passed in the exercise of the police power of the state, in 
the interest of the public health and safety, have been maintained 
by the decisions of this court. We may instance some of the cases 
of this nature in which statutes have been held not to be a regula¬ 
tion of interstate commerce, although they may affect the trans¬ 
action of such commerce among the states. In Smith v. Alabama, 
124 U. S. 465, 31 L. Ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. 
564, it was held to be within the police power of the state to re¬ 
quire locomotive engineers to be examined and licensed. In New 
York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 41 E. Ed. 
853, 17 Sup. Ct. 418, a law regulating the heating of passenger cars 
and requiring guard posts on bridges was sustained. * * * Jn 

Erb V. Morasch, 177 U. S. 584, 44 L. Ed. 897, 20 Sup. Ct. 819, it 
was held that a municipal ordinance of Kansas City, Kansas, al¬ 
though applicable to interstate trains, which restricted the speed 
of all trains within the city limits to 6 miles an hour, was a valid 
exertion of the police power of the state. In the case of Crutcher 
V. Kentucky, 141 U. S. 47, 35 E. Ed. 649, 11 Sup. Ct. 851, this court 
said: 

“ Tt is also within the undoubted province of the state legisla¬ 
ture to make regulations with regard to the speed of railroad trains 
in the neighborhood of cities and towns; with regard to the pre¬ 
cautions^ to be taken in the approach of such trains to bridges, tun¬ 
nels, deep cuts and sharp curves, and, generally, with regard to 
all operations in which the lives and health of people may be en¬ 
dangered, even though such regulations affect, to some extent, the 
operations of interstate commerce. Such regulations are eminent¬ 
ly local in their character, and, in the absence of congressional 
regulations over the same subject, are free from all constitutional 
objections, and unquestionably valid.’ * * 

“Applying the general rule to be deduced from these cases to 
such regulations as are under consideration here, it is evident that 
the constitutionality of such statutes will depend upon their effect 



COMMERCIAL POWERS 


179 


upon interstate commerce. It is consistent with the former deci¬ 
sions of this court, and with a proper interpretation of constitu¬ 
tional rights, at least in the absence of congressional action upon 
the same subject-matter, for the state to regulate the manner in 
which interstate trains shall approach dangerous crossings, the 
signals which shall be given, and the control of the train which 
shall be required under such circumstances. Crossings may be so 
situated in reference to cuts or curves as to render them highly 
dangerous to those using the public highways. They may be in 
or near towns or cities, so that to approach them at a high rate 
of speed would be attended with great danger to life or limb. On 
the other hand, highway crossings may be so numerous and so 
near together that to require interstate trains to slacken speed in¬ 
discriminately at all such crossings would be practically destruc¬ 
tive of the successful operation of such passenger trains. Stat¬ 
utes which require the speed of such trains to be checked at all 
crossings so situated might not only be a regulation, but also a 
direct burden upon interstate commerce, and therefore beyond the 
power of the state to enact. * * * 

“The amended answer contains the general statement that the 
statute is in violation of the commerce clause of the Constitution. 
But these averments are mere conclusions. They set forth no 
facts which would make the operation of the statute unconstitu¬ 
tional. In the absence of facts setting up a situation showing the 
unreasonable character of the statute as applied to the defendant 
under the circumstances, we think the amended answer set up no 
legal defense, and that the demurrer thereto was properly sus¬ 
tained.” 

[Holmes and White, JJ., dissented in their interpretation of de¬ 
fendant’s answer.] 


LEISY v. HARDIN. 

(Supreme Court of United States, 1890. 135 U. S. 100, 10 Sup. Ct. 681, 34 L. 

Ed. 128.) 

[Error to the Supreme Court of Iowa. Plaintiffs, brewers at 
Peoria, Illinois, transported into Iowa and there sold and offered 
for sale in the original packages (quarter barrels, eighth barrels, 
and sealed cases) a large quantity of beer. Defendant, a constable, 
acting under a general prohibition law of the state, seized the beer, 
and plaintiffs brought replevin to recover it. A judgment for 
plaintiffs in the lower court was reversed by the state Supreme 
Court] 

Mr. Chief Justice Fuller. The power vested in Congress “to 
regulate commerce with foreign nations, and among the several 
states, and with the Indian tribes,” is the power to prescribe the 



180 


POWERS OF CONGRESS 


rule by which that commerce is to be governed, and is a power 
complete in itself, acknowledging no limitations other than those 
prescribed in the Constitution. It is co-extensive with the sub¬ 
ject on which it acts, and cannot be stopped at the external bound¬ 
ary of a state, but must enter its interior, and must be capable of 
authorizing the disposition of those articles which it introduces, 
so that they may become mingled with the common mass of prop¬ 
erty within the territory entered. Gibbons v. Ogden, 9 Wheat. 1, 
6 L. Ed. 23; Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678. 
And while, by virtue of its jurisdiction over persons and property 
within its limits, a state may provide for the security of the lives, 
limbs, health, and comfort of persons and the protection of proper¬ 
ty so situated, yet a subject-matter which has been confided ex¬ 
clusively to Congress by the Constitution is not within the juris¬ 
diction of the police power of the state, unless placed there by 
congressional action. Henderson v. Mayor, 92 U. S. 259, 23 L. Ed. 
543; Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527; Walling 
V. Michigan, 116 U. S. 446, 6 Sup. Ct. 454, 29 L. Ed. 691; Robbins 
V. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694. 

The power to regulate commerce among the states is a unit, 
but, if particular subjects within its operation do not require the 
application of a general or uniform system, the states may legislate 
in regard to them with a view to local needs and circumstances, 
until Congress otherwise directs; but the power thus exercised 
by the states is not identical in its extent with the power to regu¬ 
late commerce among the states. * * Where the subject- 

matter requires a uniform system as between the states, the power 
controlling it is vested exclusively in Congress, and cannot be en¬ 
croached upon by the states; but where, in relation to the subject- 
matter, different rules may be suitable for different localities, the 
States may exercise powers which, though they may be said to 
partake of the nature of the power granted to the general govern¬ 
ment, are strictly not such, but are simply local powers, which 
have full operation until or unless circumscribed by the action of 
Congress in effectuation of the general power. Cooley v. Board 
of Wardens, 12 How. 299, 13 L. Ed. 996. * * * 

Whenever, however, a particular power of the general govern¬ 
ment is one which must necessarily be exercised by it, and Con¬ 
gress remains silent, this is not only not a concession that the 
powers reserved by the states may be exerted as if the specific 
power had not been elsewhere reposed, but, on the contrary, the 
only legitimate conclusion is that the general government intended 
that power should not be affirmatively exercised, and the action of 
the states cannot be permitted to effect that which would be in¬ 
compatible with such intention. Hence, inasmuch as interstate 
commerce, consisting in the transportation, purchase, sale, and 
exchange of commodities, is national in its character, and must 


COMMERCIAL POWERS 


181 


be governed by a uniform system, so long as Congress does not 
pass any law to regulate it, or allowing the states so to do, it there¬ 
by indicates its will that such commerce shall be free and untram¬ 
meled. County of Mobile v. Kimball, 102 U. S. 691, 26 L. Ed. 238; 
Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 
257; Railroad Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 E. Ed. 
244; Robbins v. Taxing Dist., 120 U. S. 489, 493, 7 Sup. Ct. 592, 
30 L. Ed. 694. 

That ardent spirits, distilled liquors, ale, and beer are subjects 
of exchange, barter, and traffic, like any other commodity in which 
a right of traffic exists, and are so recognized by the usages of the 
commercial world, the laws of Congress, and the decisions of 
courts, is not denied. Being thus articles of commerce, can a state, 
in the absence of legislation on the part of Congress, prohibit their 
importation from abroad or from a sister state? or, when import¬ 
ed, prohibit their sale by the importer? If the importation can¬ 
not be prohibited without the consent of Congress, when does 
property imported from abroad, or from a sister state, so become 
part of the common mass of property within a state as to be sub¬ 
ject to its unimpeded control? 

In Brown v. Maryland, supra, ♦ * * laid down 

* * * that the right to sell any article imported was an in¬ 
separable incident to the right to import it; and that the principles 
expounded in the case applied equally to importations from a sister 
state. Manifestly this must be so, for the same public policy ap¬ 
plied to commerce among the states as to foreign commerce, and 
not a reason could be assigned for confiding the power over the 
one which did not conduce to establish the propriety of confiding 
the power over the other. Story, Const. § 1066. And although 
the precise question before us was not ruled in Gibbons v. Ogden 
and Brown v. Maryland, yet we think it was virtually involved andl 
answered, and that this is demonstrated, among other cases, in 
Bowman v. Railway Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. 
Ed. 700 [holding Iowa unable to prohibit the carriage into it of 
liquor from other states. * * ’K Here follows a discussion of 

this case, and of the License Cases, 5 How. 504, 12 L. Ed. 256.] 

The authority of Peirce v. New Hampshire [the License Cases], 
in so far as it rests on the view that the law of New Hampshire 
was valid because Congress had made no regulation on the sub¬ 
ject, must be regarded as having been distinctly overthrown by 
the numerous cases hereinafter referred to. The doctrine now 
firmly established is, as stated by Mr. Justice Field, in Bowman 
V. Railway Co., 125 U. S. 507, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700, 
‘'that * * * where the subject is national in its character, 

and admits and requires uniformity of regulation, affecting alike 
all the states, such as transportation between the states, including 
the importation of goods from one state into another. Congress 


182 


POWERS OP CONGRESS 


can alone act upon it, and provide the needed regulations. The 
absence of any law of Congress on the subject is equivalent to its 
declaration that commerce in that matter shall be free. Thus the 
absence of regulations as to interstate commerce with reference to 
any particular subject is taken as a declaration that the importa¬ 
tion of that article into the states shall be unrestricted. It is only 
after the importation is completed, and the property imported is 
mingled with and becomes a part of the general property of the 
state, that its regulations can act upon it, except so far as may be 
necessary to insure safety in the disposition of the import until 
thus mingled.” 

The conclusion follows that, as the grant of the power to regu¬ 
late commerce among the states, so far as one system is required, 
is exclusive, the states cannot exercise that power without the as¬ 
sent of Congress, and, in the absence of legislation, it is left for 
the courts to determine when state action does or does not amount 
to such exercise; or, in other words, what is or is not a regulation 
of such commerce. When that is determined, controversy is at 
an end. * ^ * [Here follows a discussion of a number of prior 

cases, some of which are printed ante, in this chapter.] 

These decisions rest upon the undoubted right of the states of 
the Union to control their purely internal affairs, in doing which 
they exercise powers not surrendered to the national government; 
but whenever the law of the state amounts essentially to a regula¬ 
tion of commerce with foreign nations or among the states, as it 
does when it inhibits, directly or indirectly, the receipt of an im¬ 
ported commodity, or its disposition before it has ceased to become 
an article of trade between one state and another, or another 
country and this, it comes in conflict with a power which, in this 
particular, has been exclusively vested in the general government, 
and is therefore void. * * 

Undoubtedly it is for the legislative branch of the state govern¬ 
ments to determine whether the manufacture of particular articles 
of traffic, or the sale of such articles, will injuriously affect the pub¬ 
lic, and it is not for Congress to determine what measures a state 
may properly adopt as appropriate or needful for the protection of 
the public morals, the public health, or the public safety; but, 
notwithstanding it is not vested with supervisory power over mat¬ 
ters of local administration, the responsibility is upon Congress, 
so far as the regulation of interstate commerce is concerned, to 
remove the restriction upon the state in dealing with imported 
articles of trade within its limits, which have not been mingled 
with the common mass of property therein, if in its judgment the 
end to be secured justifies and requires such action. * * jk 

The plaintiffs in error are citizens of Illinois, are not pharma¬ 
cists, and have no permit, but import into Iowa beer which they 
sell in original packages, as described. Under our decision in 


COMMERCIAL POWERS 


183 


Bowman v. Railway Co., supra, they had the right to import this 
beer into that state, and in the view which we have expressed they 
had the right to sell it, by which act alone it would become mingled 
in the common mass of property within the state. Up to that point 
of time, we hold that, in the absence of congressional permission 
to do so, the state had no power to interfere by seizure, or any oth¬ 
er action, in prohibition of importation and sale by the foreign or 
non-resident importer. Whatever our individual views may be as 
to the deleterious or dangerous qualities of particular articles, we 
cannot hold that any articles which Congress recognizes as sub¬ 
jects of interstate commerce are not such, or that whatever are 
thus recognized can be controlled by state laws amounting to 
regulations, while they retain that character; although, at the 
same time if directly dangerous in themselves, the state may take 
appropriate measures to guard against injury before it obtains 
complete jurisdiction over them. To concede to a state the power 
to exclude, directly or indirectly, articles so situated, without con¬ 
gressional permission, is to concede to a majority of the people of 
a state, represented in the state legislature, the power to regulate 
commercial intercourse between the states, by determining what 
shall be its subjects, when that power was distinctly granted to be 
exercised by the people of the United States, represented in Con¬ 
gress, and its possession by the latter was considered essential to 
that more perfect Union which the Constitution was adopted to 
create. ♦ * * 

Judgment reversed. 

[Gray, J., gave a dissenting opinion, in which concurred Har¬ 
lan and Brown, JJ., in the course of which occurred the para¬ 
graph :] 

The silence and inaction of Congress upon the subject, during 
the long period since the decision of the License Cases, appear to 
us to require the inference that Congress intended that the law 
should remain as thereby declared by this court, rather than to 
warrant the presumption that Congress intended that commerce 
among the states should be free from the indirect effect of such 
an exercise of the police power for the public safety, as had been 
adjudged by that decision to be within the constitutional authority 
of the states. 


184 


POWERS OF CONGRESS 


In re RAHRER. 

(Supreme Court of United States, 1891. 140 U. S. 545, 11 Sup. Ct. 865, 35 L. 

Ed. 572.) 

[Appeal from the United States Circuit Court for the District of 
Kansas. On August 8, 1890, an act of Congress (the ‘"Wilson 
Act”) took effect providing that all intoxicating liquors shipped 
into any state or territory or remaining therein for use, sale, or 
storage, should, upon arrival therein, be subject to the laws of 
such state or territory, enacted in the exercise of its police powers, 
as though such liquor had been produced therein, and should not be 
exempt therefrom because introduced in original packages or oth¬ 
erwise. 26 Stat. 313, c. 728 (U. S. Comp. St. 1901, p. 3177). On 
August 9, 1890, Rahrer, an agent of liquor dealers in Missouri^ 
sold in the original packages in Kansas a four-gallon keg of beer 
and a pint of whisky, part of a carload of liquor received by him 
from his principals earlier in 1890. He was arrested for violation 
of the Kansas general prohibition law passed before the act of 
Congress, and was discharged by the federal Circuit Court on writ 
of habeas corpus, from which decree this appeal was taken.] 

Mr. Chief Justice FurlDR. * * * The power of Congress to 

regulate commerce among the several states, when the subjects of 
that power are national in their nature, is exclusive. The Consti¬ 
tution does not provide that interstate commerce shall be free, but, 
by the grant of this exclusive power to regulate it, it was left free 
except as Congress might impose restraint. Therefore it has been 
determined that the failure of Congress to exercise this exclusive 
power in any case is an expression of its will that the subject shall 
be free from restrictions or impositions upon it by the several 
states. Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592, 30 
L. Ed. 694. And if a law passed by a state, in the exercise of 
its acknowledged powers, comes into conflict with that will, the 
Congress and the state cannot occupy the position of equal oppos¬ 
ing sovereignties, because the Constitution declares its supremacy, 
and that of the laws passed in pursuance thereof. ^ * 

The laws of Iowa under consideration in Bowman v. Railway 
Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700, and Leisy 
V. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, were en¬ 
acted in the exercise of the police power of the state, and not at all 
as regulations of commerce with loreign nations and among the 
states; but as they inhibited the receipt of an imported com¬ 
modity, or its disposition before it had ceased to become an article 
of trade between one state and another, or another country and 
this, they amounted in effect to a regulation of such commerce. 
Hence it was held that inasmuch as interstate commerce, consist¬ 
ing in the transportation, purchase, sale, and exchange of com- 


COMMERCIAL POWERS 


185 


modities, is national in its character, and must be governed by a 
uniform system, so long as Congress did not pass any law to regu¬ 
late it specifically, or in such way as to allow the laws of the state 
to operate upon it. Congress thereby indicated its will that such 
commerce should be free and untrammeled; and therefore that the 
laws of Iowa, referred to, were inoperative in so far as they 
amounted to regulations of foreign or interstate commerce in in¬ 
hibiting the reception of such articles within the state, or their 
sale upon arrival, in the form in which they were imported there 
from a foreign country or another state. It followed as a corollary 
that, when Congress acted at all, the result of its action must be 
to operate as a restraint upon that perfect freedom which its si¬ 
lence insured. Congress has now spoken, and declared that im¬ 
ported liquors or liquids shall, upon arrival in a state, fall within the 
category of domestic articles of a similar uature. Is the law open 
to constitutional objection? 

By the first clause of section 10 of article 1 of the Constitution, 
certain powers are enumerated which the states are forbidden to 
exercise in any event; and by clauses 2 and 3, certain others, 
which may be exercised with the consent of Congress. As to 
those in the first class. Congress cannot relieve from the positive 
restriction imposed. As to those in the second, their exercise may 
be authorized; and they include the collection of the revenue from 
imposts and duties on imports and exports by state enactments, 
subject to the revision and control of Congress; and a tonnage 
duty, to the exaction of which only the consent of Congress is 
required. Beyond this. Congress is not empowered to enable the 
state to go in this direction. Nor can Congress transfer legislative 
powers to a state, nor sanction a state law in violation of the Con¬ 
stitution ; and if it can adopt a state law as its own, it must be one 
that it would be competent for it to enact itself, and not a law 
passed in the exercise of the police power. Cooley v. Board, 12 
How. 299, 13 L. Ed. 996; Gunn v. Barry, 15 Wall. 610, 623, 21 L. 
Ed. 212; U. S. V. Dewitt, 9 Wall. 41, 19 L. Ed. 593. 

It does not admit of argument that Congress can neither delegate 
its own powers, nor enlarge those of a state. This being so, it is 
urged that the act of Congress cannot be sustained as a regulation 
of commerce, because the Constitution, in the matter of interstate 
commerce, operates ex proprio vigore as a restraint upon the pow¬ 
er of Congress to so regulate it as to bring any of its subjects 
within the grasp of the police power of the state. In other words, 
it is earnestly contended that the Constitution guarantees freedom 
of commerce among the states in all things, and that not only 
may intoxicating liquors be imported from one state into another 
without being subject to regulation under the laws of the latter, 
but that Congress is powerless to obviate that result. Thus the 
grant to the general government of a power designed to prevent 


186 


POWERS OF CONGRESS 


embarrassing restrictions upon interstate commerce by any state 
would be made to forbid any restraint whatever. We do not 
concur in this view. In surrendering their own power over ex¬ 
ternal commerce, the states did not secure absolute freedom in 
such commerce, but only the protection from encroachment af¬ 
forded by confiding its regulation exclusively to Congress. 

By the adoption of the Constitution, the ability of the several 
states to act upon the matter solely in accordance with their own 
will was extinguished, and the legislative will of the general gov¬ 
ernment substituted. No affirmative guaranty was thereby given 
to any state of the right to demand, as between it and the others, 
what it could not have obtained before; while the object was 
undoubtedly sought to be attained of preventing commercial regu¬ 
lations partial in their character or contrary to the common in¬ 
terests. And the magnificent growth and prosperity of the coun¬ 
try attest the success which has attended the accomplishment of 
that object. But this furnishes no support to the position that 
Congress could not, in the exercise of the discretion reposed in it, 
concluding that the common interests did not require entire free¬ 
dom in the traffic in ardent spirits, enact the law in question. Irx 
so doing. Congress has not attempted to delegate the power to 
regulate commerce, or to exercise any power reserved to the states, 
or to grant a power not possessed by the states, or to adopt state 
laws. It has taken its own course, and made its own regulation, 
applying to these subjects of interstate commerce one common 
rule, whose uniformity is not affected by variations in state laws in 
dealing with such property. 

The principle upon which local option laws, so called, have 
been sustained, is that, while the legislature cannot delegate its 
power to make a law, it can make a law which leaves it to munici¬ 
palities or the people to determine some fact or state of things, 
upon which the action of the law may depend. But we do not rest 
the validity of the act of "Congress on this analogy. The power 
over interstate commerce is too vital to the integrity of the nation 
to be qualified by any refinement of reasoning. The power to 
regulate is solely in the general government, and it is an essential 
part of that regulation to prescribe the regular means for accom¬ 
plishing the introduction and incorporation of articles into and 
with the mass of property in the country or state. 12 Wheat. 448, 
6 L. Ed. 678. No reason is perceived why, if Congress chooses to 
provide that certain designated subjects of interstate commerce 
shall be governed by a rule which divests them of that character 
at an earlier period of time than would otherwise be the case, it is 
not within its competency to do so. The differences of opinion 
which have existed in this tribunal in many leading cases upon this 
subject have arisen, not from a denial of the power of Congress, 
when exercised but upon the question whether the inaction of Con- 


COMMERCIAL POWERS 


187 


gress was in itself equivalent to the affirmative interposition of a 
bar to the operation of an undisputed power possessed by the 
states. * * * 

Congress did not use terms of permission to the state to act, 
but simply removed an impediment to the enforcement of the state 
laws in respect to imported packages in their original condition, 
created by the absence of a specific utterance on its part. It im¬ 
parted no power to the state not then possessed, but allowed im¬ 
ported property to fall at once upon arrival within the local juris¬ 
diction. * * * This is not the case of a law enacted in the 

unauthorized exercise of a power exclusively confided to Congress, 
but of a law which it was competent for the state to pass, but 
which could not operate upon articles occupying a certain situation 
until the passage of the act of Congress. That act in terms re¬ 
moved the obstacle, and we perceive no adequate ground for ad¬ 
judging that a re-enactment of the state law was required before 
it could have the effect upon imported which it had always had 
upon domestic property. Jurisdiction attached, not in virtue of the 
law of Congress, but because the effect of the latter was to place 
the property where jurisdiction could attach. 

Decree reversed. 

[Harlan, Gray, and BrEwejr, JJ., did not concur in all of the 
reasoning of this opinion.] 


PLUMLEY v. MASSACHUSETTS (1894) 155 U. S. 461, 467, 
468, 471-474, 478-481, 15 Sup. Ct. 154, 39 L. Ed. 223, Mr. Justice 
HarIvAN (upholding as applied to interstate original packages a 
Massachusetts statute forbidding the sale of any oleomargarine 
which was in imitation of yellow butter) : 

[After holding that the federal internal revenue tax did not 
affect the question:] “It will be observed that the statute of Mas¬ 
sachusetts which is alleged to be repugnant to the commerce clause 
of the Constitution does not prohibit the manufacture or sale of all 
oleomargarine, but only such as is colored in imitation of yellow 
butter produced from pure unadulterated milk or cream of such 
milk. If free from coloration or ingredient that ‘causes it to look 
like butter,’ the right to sell it ‘in a separate and distinct form, and 
in such manner as will advise the consumer of its real character,’ 
is neither restricted nor prohibited. It appears in this case that 
oleomargarine, in its natural condition, is of ‘a light yellowish 
color,’ and that the article sold by the accused was artificially color¬ 
ed ‘in imitation of yellow butter.’ Now, the real object of coloring 
oleomargarine so as to make it look like genuine butter is that it 
may appear to be what it is not, and thus induce unwary purchas¬ 
ers, who do not closely scrutinize the label upon the package in 
which it is contained, to buy it as and for butter produced from 



188 


POWERS OF CONGRESS 


unadulterated milk, or cream from such milk. The suggestion that 
oleomargarine is artificially colored so as to render it more palata¬ 
ble and attractive can only mean that customers are deluded, by 
such coloration, into believing that they are getting genuine but¬ 
ter. If any one thinks that oleomargarine, not artifically colored so 
as to cause it to look like butter, is as palatable or as wholesome for 
purposes of food as pure butter, he is, as already observed, at lib¬ 
erty, under the statute of Massachusetts, to manufacture it in 
that state, or to sell it there in such manner as to inform the custo¬ 
mer of its real character. He is only forbidden to practice, in such 
matters, a fraud upon the general public. The statute seeks to 
suppress false pretenses and to promote fair dealing in the sale of 
an article of food. It compels the sale of olemargarine for what 
it really is, by preventing its sale for what it is not. Can it be that 
the Constitution of the United States secures to any one the privi¬ 
lege of manufacturing and selling an article of food in such manner 
as to induce the mass of people to believe that they are buying 
something which, in fact, is wholly different from that which is 
offered for sale? Does the freedom of commerce among the states 
demand a recognition of the right to practice a deception upon the 
public in the sale of any articles, even those that may have be¬ 
come the subject of trade in different parts of the country? * * 

[After discussing Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 
527; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 E. Ed. 
455; and several cases similar to the latter:] “It is obvious that 
none of the above cases presented the question now before us. 
Each of them involved the question whether one state could burden 
interstate commerce by means of discriminations enforced for the 
benefit of its own products and industries at the expense of the 
products and industries of other states. It did not become material 
in any of them to inquire, nor did this court inquire, whether a 
state, in the exercise of its police powers, may protect the public 
against the deception and fraud that would be involved in the sale 
within its limits, for purposes of food, of a compound that had been 
so prepared as to make it appear to be what it was not. * * * 

“If there be any subject over which it would seem the states 
ought to have plenary control, and the power to legislate in re¬ 
spect to which, it ought not to be supposed was intended to be 
surrendered to the general government, it is the protection of the 
people against fraud and deception in the sale of food products. 
Such legislation may, indeed, indirectly or incidentally affect trade 
in such products transported from one state to another state. But 
that circumstance does not show that laws of the character allud¬ 
ed to are inconsistent with the power of Congress to regulate 
commerce among the states. * * * 

“But the case most relied on by the petitioner to support the 


COMMERCIAL POWERS 


189 


proposition that oleomargarine, being a recognized article of com¬ 
merce may be introduced into a state, and there sold in original 
packages, without any restriction being imposed by the state upon 
such sale, is Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. 
Ed. 128. * * * It is sufficient to say of Leisy v. Hardin that 

it did not in form or in substance present the particular question 
now under consideration. The article which the majority of the 
court in that case held could be sold in Iowa in original packages, 
the statute of that state to the contrary notwithstanding, was beer 
manufactured in Illinois, and shipped to the former state to be 
there sold in such packages. So far as the record disclosed, and 
so far as the contentions of the parties were concerned, the article 
there in question was what it appeared to be, namely, genuine beer, 
and not a liquid or drink colored artificially so as to cause it to 
look like beer. The language we have quoted from Leisy v. Hardin 
must be restrained in its application to the case actually presented 
for determination, and does not justify the broad contention that a 
state is powerless to prevent the sale of articles manufactured in 
or brought from another state, and subjects of traffic and com¬ 
merce, if their sale may cheat the people into purchasing some¬ 
thing they do not intend to buy, and which is wholly different from 
what its condition and appearance import. * * 

[After referring to various state decisions upholding statutes 
like this one:] “It has been adjudged that the states may legis¬ 
late to prevent the spread of crime, and may exclude from their 
limits paupers, convicts, persons likely to become a public charge, 
and persons afflicted with contagious or infectious diseases. These 
and other like things having immediate connection with the health, 
morals, and safety of the people may be done by the states in the 
exercise of the right of self-defense. And yet it is supposed that 
the owners of a compound which has been put in a condition to 
cheat the public into believing that it is a particular article of food 
in daily use, and eagerly sought by people in every condition of 
life, are protected by the Constitution in making a sale of it against 
the will of the state, in which it is offered for sale, because qf the 
circumstance that it is in an original package, and has become a 
subject of ordinary traffic. We are unwilling to accept this 
view. We are of opinion that it is within the power of a state to 
exclude from its markets any compound manufactured in another 
state, which has been artificially colored or adulterated so as to 
cause it to look like an article of food in general use, and the sale 
of which may, by reason of such coloration or adulteration, cheat 
the general public into purchasing that which they may not in¬ 
tend to buy. The Constitution of the United States does not se¬ 
cure to any one the privilege of defrauding the public. The decep¬ 
tion against which the statute of Massachusetts is aimed is an 
offense against society; and the states are as competent to protect 


190 


POWERS OF CONGRESS 


their people against such offenses or wrongs as they are to protect 
them against crimes or wrongs of more serious character. And 
this protection may be given without violating any right secured 
by the national Constitution, and without infringing the authority 
of the general government. ♦ * * 

“In view of the complex system of government which exists in 
this country * * * the judiciary of the United States should 

not strike down a legislative enactment of a state—especially if it 
has direct connection with the social order, the health, and the 
morals of its people—unless such legislation plainly and palpably 
violates some right granted or secured by the national Constitu¬ 
tion, or encroaches upon the authority delegated to the United 
States for the attainment of objects of national concern.” 

Mr. Chief Justice FueeER, dissenting [with whom concurred 
Fie;ed and Bre:we:r, JJ.] : 

“This [law] prohibits [the] sale [of oleomargarine] in its natural 
state of light yellow, or when colored a deeper yellow, because 
in either case it looks like butter. The statute is not limited to 
imitations made for a fraudulent purpose; that is, intentionally 
made to deceive. The act of Congress * * ♦ and numerous 

acts of Massachusetts, minutely providing against deception in 
that respect, * * * amply protect the public from the danger 

of being induced to purchase oleomargarine for butter. The natu¬ 
ral and reasonable effect of this statute is to prevent the sale of 
oleomargarine because it looks like butter. How this resemblance, 
although it might possibly mislead a purchaser, renders it any the 
less an article of commerce, it is difficult to see. 

“I deny that a state may exclude from commerce legitimate 
subjects of commercial dealings because of the possibility that 
their appearance may deceive purchasers in regard to their quali¬ 
ties. In the language of Knowlton, J., in the dissenting opinion 
below, I am not ‘prepared to hold that no cloth whose fabric is so 
carded and spun and woven and finished as to give it the appear¬ 
ance of being wholly wool, when in fact it is in part cotton, can 
be a subject of commercial transactions, or that no jewelry which 
is not gold, but is made to resemble gold, and no imitations of 
precious stones, however desirable they may be considered by 
those who wish to wear them, shall be deemed articles of mer¬ 
chandise in regard to which Congress may make commercial regu¬ 
lations.’ ” 


INTERSTATE LAW OF THE CONSTITUTION 


191 


INTERSTATE LAW OF THE CONSTITUTION ^ 


BLAKE V. McCLUNG. 

(Supreme Court of United States, 1898. 172 U. S. 239, 19 Sup. Ct. 165, 43 L. 

Ed. 432.) 

[Error to the Supreme Court of Tennessee. The Embreeville 
Company, a British corporation, had complied with the provisions 
of the statute stated in the opinion below, and did business in Ten¬ 
nessee. The company became insolvent, and, upon a creditors' bill 
filed by McClung and others, a receiver was appointed who admin¬ 
istered the assets. The chancery court entered a decree adjudicat¬ 
ing that the creditors who were residents of Tennessee were, under 
the aforesaid statute, entitled to priority in the distribution of as¬ 
sets as against all creditors resident out of the state, whether citi¬ 
zens of other states or not. This was affirmed by the state Su¬ 
preme Court, and a writ of error was taken by Blake and others,, 
citizens of Ohio, and by the Hull Coal Company, a Virginia corpo¬ 
ration, all of whom were creditors of the Embreeville Company.] 

Mr. Justice Harlan. * * * The plaintiffs in error contend 

that the judgment of the state court, based upon the statute, denies 
to them rights secured by the second section of the fourth article 
of the Constitution of the United States, providing that “the citizens 
of each state shall be entitled to all privileges and immunities of 
citizens in the several states." ^ * 

We have seen that, by the third section of the Tennessee statute, 
corporations organized under the laws of other states or countries, 
and which complied with the provisions of the statute, were to be 
deemed and taken to be corporations of that state; and by the 
fifth section it is declared, in respect of the property of corporations 
doing business in Tennessee under the provisions of the statute, 
that creditors who are residents of that state shall have a priority 
in the distribution of assets, or the subjection of the same, or any 
part thereof, to the payment of debts, over all simple contract cred¬ 
itors, being residents of any other country or countries. 

The suggestion is made that, as the statute refers only to “resi¬ 
dents," there is no occasion to consider whether it is repugnant to 
the provision of the national Constitution relating to citizens. We 
cannot accede to this view. * * * Looking at the purpose and 

scope of the Tennessee statute, it is plain that the words “residents 
of this state" refer to those whose residence in Tennessee was such 
as indicated that their permanent home or habitation was there, 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 111-114. 



192 


INTERSTATE LAW OF THE CONSTITUTION 


without any present intention of removing therefrom, and having 
the intention, when absent from that state, to return thereto, 
such residence as appertained to or inhered in citizenship. And the 
words, in the same statute, “residents of any other country or coun¬ 
tries,” refer to those whose respective habitations were not in Ten¬ 
nessee, but who were citizens, not simply residents, of some other 
state or country. It is impossible to believe that the statute was 
intended to apply to creditors of whom it could be said that they 
were only residents of other states, but not to creditors who were 
citizens of such states. The state did not intend to place creditors, 
citizens of other states, upon an equality with creditors, citizens of 
Tennessee, and to give priority only to Tennessee creditors over 
creditors who resided in, but were not citizens of, other states. 
The manifest purpose was to give to all Tennessee creditors priority 
over all creditors residing out of that state, whether the latter were 
citizens or only residents of some other state or country. Any 
other interpretation of the statute would defeat the object for which 
it was enacted. ^ * 

Beyond question, a state may, through judicial proceedings, take 
possession of the assets of an insolvent foreign corporation within 
its limits, and distribute such assets or their proceeds among cred¬ 
itors according to their respective rights. But may it exclude citi¬ 
zens of other states from such distribution until the claims of its 
own citizens shall have been first satisfied? In the administration 
of the property of an insolvent foreign corporation by the courts of 
the state in which it is doing business, will the Constitution of 
the United States permit discrimination against individual cred¬ 
itors of such corporation because of their being citizens of other 
states, and not citizens of the state in which such administration 
occurs? 

These questions are presented for our determination. Let us see 
how far they have been answered by the former decisions of this 
court. 

This court has never undertaken to give any exact or comprehen¬ 
sive definition of the words “privileges and immunities,” in article 
4 of the Constitution of the United States. Referring to this 
clause, Mr. Justice Curtis, speaking for the court in Conner v. El¬ 
liot, 18 How. 591, 593 (15 L. Ed. 497), said: “We do not deem it 
needful to attempt to define the meaning of the word ‘privileges’ 
in this clause of the Constitution. It is safer, and more in accord¬ 
ance with the duty of a judicial tribunal, to leave its meaning to be 
determined, in each case, upon a view of the particular rights as¬ 
serted and denied therein. And especially is this true when we are 
dealing with so broad a provision, involving matters not only of 
great delicacy and importance, but which are of such a character 
that any merely abstract definition could scarcely be correct; and 


INTERSTATE LAW OF THE CONSTITUTION 


193 


a failure to make it so would certainly produce mischief/* Never¬ 
theless, what has been said by this and other courts upon the gen¬ 
eral subject will assist us in determining the particular questions 
now pressed upon our attention. 

One of the leading cases in which the general question has been 
examined is Corfield v. Coryell, 4 Wash. C. C. 371, 380, Fed. Cas. 
No. 3,230, decided by Mr. Justice Washington at the circuit. He 
said: ‘‘The inquiry is, what are the privileges and immunities of 
citizens in the several states? We feel no hesitation in confining 
these expressions to those privileges and immunities which are, in 
their nature fundamental; which belong, of right, to the citizens of 
all free governments; and which have at all times been enjoyed 
by the citizens of the several states which compose this Union, 
from the time of their becoming free, independent, and sovereign. 
What these fundamental principles are, it would perhaps be more 
tedious than difficult to enumerate. They may, however, be com¬ 
prehended under the following general heads: Protection by the 
government; the enjoyment of life and liberty, with the right to 
acquire and possess property of every kind, and to pursue and ob¬ 
tain happiness and safety,—subject, nevertheless, to such restraints 
as the government may justly prescribe for the general good of the 
whole. The right of a citizen of one state to pass through or to 
reside in any other state for the purposes of trade, agriculture, pro¬ 
fessional pursuits, or otherwise; to claim the benefit of the writ of 
habeas corpus; to institute and maintain actions of any kind in 
the courts of the state; to take, hold, and dispose of property, either 
real or personal; and an exemption from higher taxes or impositions 
than are paid by the other citizens of the state,—may be men¬ 
tioned as some of the particular privileges and immunities of citi¬ 
zens, which are clearly embraced by the general description of priv¬ 
ileges deemed to be fundamental, to which may be added the elec¬ 
tive franchise, as regulated and established by the laws or consti¬ 
tution of the state in which it is to be exercised. These, and many 
others which might be mentioned, are, strictly speaking, privileges 
and immunities, and the enjoyment of them by the citizens of each 
state in every other state was manifestly calculated (to use the 
expression of the preamble to the corresponding provision in the 
old articles of confederation) ‘the better to secure and perpetuate 
mutual friendship and intercourse among the people of the differ¬ 
ent states of the Union.* ” 

These observations of Mr. Justice Washington were made in a 
case involving the validity of a statute of New Jersey regulating 
the taking of oysters and shells on banks or beds within that state, 
and which excluded inhabitants and residents of other states from 
the privilege of taking or gathering clams, oysters, or shells on any 
of the rivers, bays, or waters in New Jersey, not wholly owned by 
Hall Cases Const.L.—13 


194 


INTERSTATE LAW OP THE CONSTITUTION 


some person residing in the state. The statute was sustained upon 
the ground that it only regulated the use of the common property 
of the citizens of New Jersey, which could not be enjoyed by oth¬ 
ers without the tacit consent or the express permission of the sov¬ 
ereign having the power to regulate its use. The court said: “The 
oyster beds belonging to a state may be abundantly sufficient for 
the use of the citizens of that state, but might be totally exhausted 
and destroyed if the legislature could not so regulate the use of 
them as to exclude the citizens of the other states from taking 
them, except under such limitations and restrictions as the laws 
may prescribe.*’ 

In Paul V. Virginia, 8 Wall. 168, 180 (19 L. Ed. 357), the court 
observed that “it was undoubtedly the object of the clause in ques¬ 
tion to place the citizens of each state upon the same footing with 
citizens of other states, so far as the advantages resulting from 
citizenship in those states are concerned. It relieves them from the 
disabilities of alienage in other states; it inhibits discriminating leg¬ 
islation against them by other states; it gives them the right of 
free ingress into other states, and egress from them; it insures to 
them in other states the same freedom possessed by the citizens 
of those states in the acquisition and enjoyment of property, and in 
the pursuit of happiness; and it secures to them in other states 
the equal protection of their laws. It has been justly said that no 
provision in the Constitution has tended so strongly to constitute 
the citizens of the United States one people as this. Lemmon v. 
People, 20 N. Y. 607. Indeed, without some provision of the kind, 
removing from the citizens of each state the disabilities of alienage 
in the other states, and giving them equality of privilege with citi¬ 
zens of those states, the republic would have constituted little more 
than a league of states; it would not have constituted the Union 
which now exists.” 

Ward V. Maryland, 12 Wall. 418, 430 (20 L. Ed. 449), involved 
the validity of a statute of Maryland requiring all traders, not being 
permanent residents of the state, to take out licenses for the sale of 
goods, wares, or merchandise in Maryland, other than agricultural 
products and articles there manufactured. This court said: “At¬ 
tempt will not be made to define the words 'privileges and immuni¬ 
ties,’ or to specify the rights which they are intended to secure and 
protect, beyond what may be necessary to the decision of the case 
before the court. Beyond doubt, those words are words of very 
comprehensive meaning, but it will be sufficient to say that the 
clause plainly and unmistakably secures and protects the right of a 
citizen of one state to pass into any other state of the Union, for 
the purpose of engaging in lawful commerce, trade, or business, 
without molestation, to acquire personal property, to take and hold 
real estate, to maintain actions in the courts of the states, and to be 
exempt from any higher taxes or excises than are imposed by the 


INTERSTATE LAW OF THE CONSTITUTION 


195 


State upon its own citizens. Comprehensive as the power of the 
states is to lay and collect taxes and excises, it is nevertheless clear, 
in the judgment of the court, that the power cannot be exercised 
to any extent in a manner forbidden by the Constitution; and, in¬ 
asmuch as the Constitution provides that the citizens of each state 
shall be entitled to all privileges and immunities of citizens in the 
several states, it follows that the defendant might lawfully sell or 
offer or expose for sale within the district described in the indict¬ 
ment, any goods which the permanent residents of the state might 
sell or offer or expose for sale in that district, without being sub¬ 
jected to any higher tax or excise than that exacted by law of 
such permanent residents.” 

In the Slaughter-House Cases, 16 Wall. 36, 77 (21 L. Ed. 394), 
the court, referring to what was said in Paul v. Virginia, above 
cited, in reference to the scope and meaning of section 2 of article 
4 of the Constitution, said: “The constitutional provision there 
alluded to did not create those rights which it called privileges and 
immunities of citizens of the states. It threw around them in that 
clause no security for the citizen of the state in which they were 
claimed or exercised. Nor did it profess to control the power of 
the state governments over the rights of its own citizens. Its sole 
purpose was to declare to the several states, that whatever those 
rights, as you grant or establish them to your own citizens, or as 
you limit or qualify, or impose restrictions on their exercise, the 
same, neither more nor less, shall be the measure of the rights of 
citizens of other states within your jurisdiction.” 

In Cole V. Cunningham, 133 U. S. 107, 113, 114, 10 Sup. Ct. 271, 
33 L. Ed. 538, this court cited with approval the language of Justice 
Story, in his Commentaries on the Constitution, to the effect that 
the object of the constitutional guaranty was to confer on the 
citizens of the several states “a general citizenship, and to com¬ 
municate all the privileges and immunities which the citizens of 
the same state would be entitled to under like circumstances, and 
this includes the right to institute actions.” 

These principles have not been modified by any subsequent de¬ 
cision of this court. 

The foundation upon which the above cases rest cannot, how¬ 
ever, stand, if it be adjudged to be in the power of one state, when 
establishing regulations for the conduct of private business of a 
particular kind, to give its own citizens essential privileges con¬ 
nected with that business which it denies to citizens of other states. 
By the statute in question the British company was to be deemed 
and taken to be a corporation of Tennessee, with authority to carry 
on its business in that state. It was the right of citizens of Ten¬ 
nessee to deal with it, as it was their right to deal with corpora¬ 
tions created by Tennessee. And it was equally the right of citi¬ 
zens of other states to deal with that corporation. The state did 


196 


INTERSTATE LAW OF THE CONSTITUTION 


not assume to declare, even if it could legally have declared, that 
that company, being admitted to do business in Tennessee, should 
transact business only with citizens of Tennessee, or should not 
transact business with citizens of other states. No one would 
question the right of the individual plaintiffs in error, although not 
residents of Tennessee, to sell their goods to that corporation upon 
such terms in respect of payment as might be agreed upon, and to 
ship them to the corporation at its place of business in that state. 

But the enjoyment of these rights is materially obstructed by the 
statute in question; for that statute, by its necessary operation, 
excludes citizens of other states from transacting business with that 
corporation upon terms of equality with citizens of Tennessee. By 
force of the statute alone, citizens of other states, if they contracted 
at all with the British corporation, must have done so subject to 
the onerous condition that, if the corporation became insolvent, its 
assets in Tennessee should first be applied to meet its obligations 
to residents of that state, although liability for its debts and en¬ 
gagements was ^‘to be enforced in the manner provided by law for 
the application of the property of natural persons to the payment 
of their debts, engagements, and contracts.” But, clearly, the state 
could not in that mode secure exclusive privileges to its own citi¬ 
zens in matters of business. If a state should attempt, by statute 
regulating the distribution of the property of insolvent individuals 
among their creditors, to give priority to the claims of such individ¬ 
ual creditors as were citizens of that state over the claims of indi¬ 
vidual creditors citizens of other states, such legislation would be 
repugnant to the Constitution, upon the ground that it withheld 
from citizens of other states, as such, and because they were such, 
privileges granted to citizens of the state enacting it. Can a dif¬ 
ferent principle apply, as between individual citizens of the several 
states, when the assets to be distributed are the assets of an insol¬ 
vent private corporation lawfully engaged in business, and having 
the power to contract with citizens residing in states other than 
the one in which it is located? * ^ * 

We hold such discrimination against citizens of other states to 
be repugnant to the second section of the fourth article of the Con¬ 
stitution of the United States, although, generally speaking, the 
state has the power to prescribe the conditions upon which foreign 
corporations may enter its territory for purposes of business. Such 
a power cannot be exerted with the effect of defeating or impair¬ 
ing rights secured to citizens of the several states by the supreme 
law of the land. Indeed, all the powers possessed by a state must 
be exercised consistently with the privileges and immunities granted 
or protected by the Constitution of the United States. * * * 

We must not be understood as saying that a citizen of one state 
is entitled to enjoy in another state every privilege that may be 
given in the latter to its own citizens. There are privileges that 


INTERSTATE LAW OF THE CONSTITUTION 


197 


may be accorded by a state to its own people, in which citizens of 
other states may not participate, except in conformity to such rea¬ 
sonable regulations as may be established by the state. For in¬ 
stance, a state cannot forbid citizens of other states from suing in 
its courts, that right being enjoyed by its own people; but it may 
require a nonresident, although a citizen of another state, to give 
bond for costs, although such bond be not required of a resident. 
Such a regulation of the internal affairs of a state cannot reason¬ 
ably be characterized as hostile to the fundamental rights of citi¬ 
zens of other states. So, a state may, by rule uniform in its opera¬ 
tion as to citizens of the several states, require residence within 
its limits for a given time before a citizen of another state, who be¬ 
comes a resident thereof, shall exercise the right of suffrage or 
become eligible to office. It has never been supposed that regula¬ 
tions of that character materially interfered with the enjoyment by 
citizens of each state of the privileges and immunities secured by 
the Constitution to citizens of the several states. The Constitu¬ 
tion forbids only such legislation affecting citizens of the respective 
states as will substantially or practically put a citizen of one state 
in a condition of alienage when he is within or when he removes 
to another state, or when asserting in another state the rights that 
commonly appertain to those who are part of the political commu¬ 
nity known as the People of the United States, by and for whom 
the government of the Union was ordained and established. 

Nor must we be understood as saying that a state may not, by 
its courts, retain within its limits the assets of a foreign corporation, 
in order that justice may be done to its own citizens, nor, by appro¬ 
priate action of its judicial tribunals, see to it that its own citizens 
are not unjustly discriminated against by reason of the adminis¬ 
tration in other states of the assets there of an insolvent corporation 
doing business within its limits. For instance, if the Embreeville 
Company had property in Virginia at the time of its insolvency, the 
Tennessee court administering its assets in that state could take 
into account w^hat a Virginia creditor, seeking to participate in the 
distribution of the company’s assets in Tennessee, had received or 
would receive from the company’s assets in Virginia, and make such 
order touching the assets of the company in Tennessee, as would 
protect Tennessee creditors against wrongful discrimination arising 
from the particular action taken in Virginia for the benefit of cred¬ 
itors residing in that commonwealth. 

It may be appropriate to observe that the objections to the statute 
of Tennessee do not necessarily embrace enactments that are found 
in some of the states requiring foreign insurance corporations, 
as a condition of their coming into the state for purposes of busi¬ 
ness, to deposit with the state treasurer funds sufficient to secure 
policy holders in its midst. Legislation of that character does not 
present any question of discrimination against citizens forbidden 


198 


INTERSTATE LAW OF THE CONSTITUTION 


by the Constitution. Insurance funds set apart in advance for the 
benefit of home policy holders of a foreign insurance company 
doing business in the state are a trust fund of a specific kind, to 
be administered for the exclusive benefit of certain persons. Policy 
holders in other states know that those particular funds are segre¬ 
gated from the mass of property owned by the company, and that 
they cannot look to them to the prejudice of those for whose spe¬ 
cial benefit they were deposited. The present case is not one of 
that kind. The statute of Tennessee did not make it a condition 
of the right of the British corporation to come into Tennessee for 
purposes of business that it should, at the outset, deposit with the 
state a fixed amount, to stand exclusively or primarily for the pro¬ 
tection of its Tennessee creditors. * ♦ * 

We adjudge that when the general property and assets of a pri¬ 
vate corporation lawfully doing business in a state are in course 
of administration by the courts of such state, creditors who are 
citizens of other states are entitled, under the Constitution of the 
United States, to stand upon the same plane with creditors of like 
class who are citizens of such state, and cannot be denied equality 
of right simply because they do not reside in that state, but are 
citizens residing in other states of the Union. The individual plain¬ 
tiffs in error were entitled to contract with this British corporation, 
lawfully doing business in Tennessee, and deemed and taken to 
be a corporation of that state; and no rule in the distribution of 
its assets among creditors could be applied to them as resident 
citizens of Ohio, and because they were not residents of Tennessee, 
that was not applied by the courts of Tennessee to creditors of like 
character who were citizens of Tennessee. 

As to the plaintiff in error, the Hull Coal & Coke Company of 
Virginia, different considerations must govern our decision. It has 
long been settled that, for purposes of suit by or against it in the 
courts of the United States, the members of a corporation are to 
be conclusively presumed to be citizens of the state creating such 
corporation (Railroad Co. v. Tetson, 2 How. 497, 11 L. Ed. 353; 
Drawbridge Co. v. Shepherd, 20 How. 227, 232, 15 L. Ed. 896; 
Railroad Co. v. Wheeler, 1 Black, 286, 296, 17 E. Ed. 130; Steamship 
Co. V. Tugman, 106 U. S. 118, 120, 1 Sup. Ct. 58, 27 E. Ed. 87; 
Steamship Co. v. Kane, 170 U. S. 100, 111, 18 Sup. Ct. 526, 42 E. 
Ed. 964) ; and therefore it has been said that a corporation is to 
be deemed, for such purposes, a citizen of the state under whose 
laws it was organized. But it is equally well settled, and we now 
hold, that a corporation is not a citizen within the meaning of the 
constitutional provision that “the citizens of each state shall be 
entitled to all privileges and immunities of citizens in the several 
states” (Paul v. Virginia, 8 Wall. 168, 178, 179, 19 E. Ed. 357; 
Ducat V. Chicago, 10 Wall. 410, 415, 19 E. Ed. 972; Eiverpool Ins. 
Co. V. Massachusetts, 10 Wall. 566, 573, 19 E. Ed. 1029). The Vir- 


INTERSTATE LAW OF THE CONSTITUTION 


199 


ginia corporation, therefore, cannot invoke that provision for pro¬ 
tection against the decree of the state court denying its right to par¬ 
ticipate upon terms of equality with Tennessee creditors in the 
distribution of the assets of the British corporation in the hands of 
the Tennessee court. ♦ * * 

Judgment accordingly. 

[Bre:we:r, J., gave a dissenting opinion, in which Fulle:r, C. J., 
concurred, on the ground that the Tennessee statute discriminated, 
not against non-citizens, but against non-residents of the state.] 


FAUNTLEROY v. LUM. 

(Supreme Court of United States, 1908. 210 U. S. 230, 28 Sup. Ct. 641, 52 L. 

Ed. 1039.) 

[Error to the Supreme Court of Mississippi. The facts are stated 
in the opinion.] 

Mr. Justice Holmejs. This is an action upon a Missouri judg¬ 
ment, brought in a court of Mississippi. The declaration set forth 
the record of the judgment. The defendant pleaded that the orig¬ 
inal cause of action arose in Mississippi out of a gambling transac¬ 
tion in cotton futures; that he declined to pay the loss; that the 
controversy was submitted to arbitration, the question as to the 
illegality of the transaction, however, not being included in the 
submission; that an award was rendered against the defendant; 
that thereafter, finding the defendant temporarily in Missouri, the 
plaintiff brought suit there upon the award; that the trial court 
refused to allow the defendant to show the nature of the transac¬ 
tion, and that, by the laws of Mississippi, the same was illegal and 
void, but directed a verdict if the jury should find that the submis¬ 
sion and award were made, and remained unpaid; and that a ver¬ 
dict was rendered and the judgment in suit entered upon the 
same. * * q'he plea was demurred to on constitutional 

grounds. ♦ * * Supreme Court of Mississippi held the 

plea good * * ♦ and judgment was entered for the defendant. 

Thereupon the case was brought here. * * * 

The laws of Mississippi make dealing in futures a misdemeanor, 
and provide that contracts of that sort, made without intent to de¬ 
liver the commodity or to pay the price, “shall not be enforced by 
any court.” Annotated Code of 1892, §§ 1120, 1121, 2117. * * ^ 

[After deciding that the Mississippi courts had jurisdiction to 
consider the case:] We proceed at once to the-further question, 
whether the illegality of the original cause of action in Mississippi 
can be relied upon there as a ground for denying a recovery upon a 
judgment of another state. 

The doctrine laid down by Chief Justice Marshall was “that the 
judgment of a state court should have the same credit, validity, and 



200 


INTERSTATE LAW OF THE CONSTITUTION 


effect in every other court in the United States which it had in the 
state where it was pronounced, and that whatever pleas would be 
good to a suit thereon in such state, and none others, could be 
pleaded in any other court in the United States.” Hampton v. Mc- 
Connel, 3 Wheat. 234, 4 L. Ed. 378. There is no doubt that this 
quotation was supposed to be an accurate statement of the law as 
late as Christmas v. Russell, 5 Wall. 290, 18 L. Ed. 475, where an 
attempt of Mississippi, by statute, to go behind judgments recov¬ 
ered in other states, was declared void, and it was held that such 
judgments could not be impeached even for fraud. 

But the law is supposed to have been changed by the decision in 
Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 32 L. Ed. 239, 8 Sup. 
Ct. 1370. That was a suit brought in this court by the state of Wis¬ 
consin upon a Wisconsin judgment against a foreign corporation. 
The judgment was for a fine or penalty imposed by the Wisconsin 
statutes upon such corporations doing business in the state and 
failing to make certain returns, and the ground of decision was that 
the jurisdiction given to this court by article 3, § 2, as rightly in¬ 
terpreted by the judiciary act, now Rev. Stat. § 687, U. S. Comp. 
Stat. 1901, p. 565, was confined to “controversies of a civil nature,” 
which the judgment in suit was not. The case was not within the 
words of art. 1, § 1, and, if it had been, still it would not have, 
and could not have, decided anything relevant to the question be¬ 
fore us. It is true that language was used which has been treated 
as meaning that the original claim upon which a judgment is based 
may be looked into further than Chief Justice Marshall supposed. 
But evidently it meant only to justify the conclusion reached upon 
the specific point decided, for the proviso was inserted that a court 
“cannot go behind the judgment for the purpose of examining into 
the validity of the claim.” 127 U. S. 293. However, the whole pas¬ 
sage was only a dictum and it is not worth while to spend much 
time upon it. 

We assume that the statement of Chief Justice Marshall is cor¬ 
rect. It is confirmed by the act of May 26, 1790, chap. 11, 1 Stat. 
at E. 122 (Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677), pro¬ 
viding that the said records and judicial proceedings “shall have 
such faith and credit given to them in every court within the 
United States as they have by law or usage in the courts of the 
state from whence the said records are or shall be taken.” See 
further Tilt v. Kelsey, 207 U. S. 43, 57, 28 Sup. Ct. 1, 52 L. Ed. 
95. Whether the award would or would not have been conclusive, 
and whether the ruling of the Missouri court upon that matter 
was right or wrong, there can be no question that the judgment 
was conclusive in Missouri on the validity of the cause of action. 
Pitts V. Fugate, 41 Mo. 405; State ex rel. Hudson v. Trammel, 106 
Mo. 510, 17 S. W. 502; Re Copenhaver, 118 Mo. 377, 40 Am.’ St. 


INTERSTATE LAW OF THE CONSTITUTION 


201 


Rep. 382, 24 S. W. 161. A judgment is conclusive as to all the 
media concludendi (United States v. California & O Land Co., 192 
U. S. 355, 48 L. Ed. 476, 24 Sup. Ct. 266) ; and it needs no au¬ 
thority to show that it cannot be impeached either in or out of the 
state by showing that it was based upon a mistake of law. Of 
course, a want of jurisdiction over either the person or the sub¬ 
ject-matter might be shown. Andrews v. Andrews, 188 U. S. 14, 
47 L. Ed. 366, 23 Sup. Ct. 237; Clarke v. Clarke, 178 U. S. 186, 44 
L. Ed. 1028, 20 Sup. Ct. 873. But, as the jurisdiction of the Mis¬ 
souri court is not open to dispute, the judgment cannot be im¬ 
peached in Mississippi even if it went upon a misapprehension of 
the Mississippi law. See Godard v. Gray, L. R. 6 Q. B. 139; 
MacDonald v. Grand Trunk R. Co., 71 N. H. 448, 59 L. R. A. 448, 
93 Am. St. Rep. 550, 52 Atl. 982; Peet v. Hatcher, 112 Ala. 514, 
57 Am. St. Rep. 45, 21 So. 711. 

We feel no apprehensions that painful or humiliating conse¬ 
quences will follow upon our decision. No court would give judg¬ 
ment for a plaintiff unless it believed that the facts were a cause 
of action by the law determining their effect. Mistakes will be 
rare. In this case the Missouri court no doubt supposed that the 
award was binding by the law of Mississippi. If it was mistaken, 
it made a natural mistake. The validity of its judgment, even in 
Mississippi, is, as we believe, the result of the Constitution as it 
always has been understood, and is not a matter to arouse the sus¬ 
ceptibilities of the states, all of which are equally concerned in the 
question and equally on both sides. 

Judgment reversed. 

[WhiT^, J., gave a dissenting opinion, in which concurred Har¬ 
lan, McKenna, and Day, JJ.] 


HYATT v. NEW YORK ex rel. CORKRAN. 

(Supreme Court of United States, 1903. 188 U. S. 691, 23 Sup. Ct. 456, 47 L. 

Ed. 657.) 

[Error to the Court of Appeals of the state of New York to re¬ 
view a judgment discharging on habeas corpus a person held under 
a warrant issued in extradition proceedings by the governor of that 
state. The facts appear below.] 

Mr. Justice Peckham. * * ♦ in the case before us it is con¬ 

ceded that the relator was not in the state at the various times 
when it is alleged in the indictments the crimes were committed, 
nor until eight days after the time when the last one is alleged to 
have been committed. * * * 

It is, however, contended that a person may be guilty of a lar¬ 
ceny or false pretense within a state without being personally 



202 


INTERSTATE LAW OF THE CONSTITUTION 


present in the state at the time. Therefore the indictments found 
were sufficient justification for the requisition and for the action 
of the governor of New York thereon. This raises the question 
whether the relator could have been a fugitive from justice when 
it is conceded he was not in the state of Tennessee at the time of 
the commission of those acts for which he had been indicted, as¬ 
suming that he committed them outside of the state. 

The exercise of jurisdiction by a state to make an act committed 
outside its borders a crime against the state is one thing, but to 
assert that the party committing such act comes under the federal 
statute, and is to be delivered up as a fugitive from the justice of 
that state, is quite a different proposition. 

The language of § 5278, Rev. Stat. (U. S. Comp. Stat. 1901, p. 
3597), provides, as we think, that the act shall have been commit¬ 
ted by an individual who was at the time of its commission per¬ 
sonally present within the state which demands his surrender. It 
speaks of a demand by the executive authority of a state for the 
surrender of a person as a fugitive from justice, by the executive 
authority of a state to which such person has tied, and it provides that 
a copy of the indictment found, or affidavit made before a magistrate 
of any state, charging the person demanded with having committed 
treason, etc., certified as authentic by the governor or chief magistrate 
of the state or territory from whence the person so charged has ded, 
shall be produced, and it makes it the duty of the executive author¬ 
ity of the state to which such person has ded to cause him to be ar¬ 
rested and secured. Thus, the person who is sought must be one 
who has fled from the demanding state, and he must have fled (not 
necessarily directly) to the state where he is found. It is difficult 
to see how a person can be said to have fled from the state in which 
he is charged to have committed some act amounting to a crime 
against that state, when in fact he was not within the state at the 
time the act is said to have been committed. How can a person 
flee from a place that he was not in? He could avoid a place that 
he had not been in; he could omit to go to it; but how can it be 
said with accuracy that he has fled from a place in which he had 
not been present? This is neither a narrow, nor, as we think, an 
incorrect, interpretation of the statute. It has been in existence 
since 1793, and we have found no case decided by this court 
wherein it has been held that the statute covered a case where the 
party was not in the state at the time when the act is alleged to 
have been committed. We think the plain meaning of the act re¬ 
quires such presence, and that it was not intended to include, as 
a fugitive from the justice of a state, one who had not been in the 
state at the time when, if ever, the offense was committed, and 
who had not, therefore, in fact, fled therefrom. * ^ ^ 

The subsequent presence for one day (under the circumstances 
stated above) of the relator in the state of Tennessee, eight days 


STATE JUDICIAL POWER 


203 


after the alleged commission of the act, did not, when he left the 
state, render him a fugitive from justice within the meaning of the 
statute. There is no evidence or claim that he then committed 
any act which brought him within the criminal law of the state of 
Tennessee, or that he was indicted for any act then committed. 
The proof is uncontradicted that he went there on business, trans¬ 
acted it, and came away. The complaint was not made, nor the 
indictments found, until months after that time. His departure 
from the state after the conclusion of his business cannot be re¬ 
garded as a fleeing from justice within the meaning of the statute. 
He must have been there when the crime was committed, as al¬ 
leged, and if not, a subsequent going there and coming away is 
not a flight. * * ♦ 

Judgment affirmed. 


ESTABLISHMENT OF REPUBLICAN GOVERNMENT" 


LUTHER V. BORDEN. 

(Supreme Court of United States, 1849. 7 How. 1, 12 L. Ed. 581.) 
See ante, p. 38, for a report of this case. 


STATE EXECUTIVE POWER" 


MISSISSIPPI V. JOHNSON. 

(Supreme Court of United States, 1867. 4 Wall. 475, 18 L, Ed. 437.) 
See ante, p. 35, for a report of this case. 


LUTHER V. BORDEN. 

(Supreme Court of United States, 1849. 7 How. 1, 12 L. Ed. 581.) 
See ante, p. 38, for a report of this case. 


STATE JUDICIAL POWER * 

See the cases ante, pp. 18-34, under The Three Departments 
of Government. 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 117-119. 

2 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 125, 126. 

8 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 128, 134. 








204 


STATE LEGISLATIVE POWEB 


STATE LEGISLATIVE POWER 


SHARPLESS V. MAYOR, ETC, OF CITY OF PHILADEL¬ 
PHIA. 

(Supreme Court of Pennsylvania, 1853. 21 Pa. 147, 59 Am. Dec. 759.) 

See ante, p. 12, for a report of this case. 


AUSTIN V. TENNESSEE. 

(Supreme Court of United States, 1900. 179 U. S. 343, 21 Sup. Ct. 132, 45 

L. Ed. 224.) 

[Error to the Supreme Court of Tennessee. A state statute for¬ 
bade the selling of cigarettes. Austin purchased from a factory in 
North Carolina a lot of cigarettes in pasteboard boxes containing 
10 each, each box separately stamped and labeled as prescribed by 
the federal revenue laws. The vendor piled the boxes sold upon 
the floor of its warehouse, and an express company by its agent 
took them from the floor, put them in an open basket already in 
its possession, shipped them to Austin’s town in Tennessee, and 
delivered from the basket, upon the counter in Austin’s place of 
business, the whole lot of detached boxes. Austin sold one of 
these boxes, unbroken, and was convicted of violating the statute.] 

Mr. Justice Brown, * * * [After deciding that cigarettes 

were a legitimate article of commerce:] There is no reason to 
doubt the good faith of the legislature of Tennessee in prohibiting 
the sale of cigarettes as a sanitary measure, and if it be inoperative 
as applied to sales by the owner in the original packages, of cigar¬ 
ettes manufactured in and brought from another state, we are re¬ 
mitted to the inquiry whether a paper package of 3 inches in length 
and 1% inches in width, containing ten cigarettes, is an original 
package protected by the Constitution of the United States against 
any interference by the state while in the hands of the importer? 
This we regard as the vital question in the case. 

The whole law upon the subject of original packages is based 
upon a decision of this court, in Brown v. Maryland, 12 Wheat. 
419, 6 L. Ed. 678, in which a statute of Maryland, requiring all 
importers of foreign articles, "‘by bale or package,” or of intoxi¬ 
cating liquors, and other persons selling the same, %y wholesale, 
bale or package, hogshead, barrel or tierce,” to take out a license, 
was held to be repugnant to that provision of the Constitution for- 

* For discussion of principles, see Black, Const. Law (3d Ed.) §§ 137, 139. 




STATE LEGISLATIVE POWER 


205 


bidding states from laying a duty upon imports, as well as to that 
declaring that Congress should have power to regulate commerce 
with foreign nations. There was thought to be no difference be¬ 
tween a power to prohibit the sale of an article while it was an 
import and the power to prohibit its introduction into the country. 
The one would be the necessary consequence of the other. No 
goods would be imported if none could be sold. But, in delivering 
the opinion of the court, Mr. Chief Justice Marshall observed: 
'‘It is sufficient for the present to say, generally, that when the 
importer has so acted upon the thing imported that it has become 
incorporated and mixed up with the mass of property in the coun¬ 
try, it has, perhaps, lost its distinctive character as an import, and 
has become subject to the taxing power of the state; but while re¬ 
maining the property of the importer, in his warehouse, in the 
original form or package in which it was imported, a tax upon it 
is too plainly a duty on imports to escape the prohibition in the 
Constitution.” This sentence contains in a nutshell the whole doc¬ 
trine upon the subject of original packages, upon which so formi¬ 
dable a structure has been attempted to be erected in subsequent 
cases. Whether the decision would have been the same if the orig¬ 
inal packages in that case, instead of being bales of dry goods or 
hogsheads, barrels or tierces of liquors, had been so minute in 
size as to permit of their sale directly to consumers, may admit of 
considerable doubt. Obviously the doctrine of the case is direct¬ 
ly applicable only to those large packages in which from time im¬ 
memorial it has been customary to import goods from foreign 
countries. It is safe to assume that it did not occur to the Chief 
Justice that, by a skilful alteration of the size of the packages, the 
decision might be used to force upon a reluctant people the use of 
articles denounced as noxious by the legislatures of the several 
states. * * * 

Most pertinent to this case, and, as we think, covering its prin¬ 
ciple completely, is the opinion of this court in May v. New Or¬ 
leans, 178 U. S. 496, 44 L. Ed. 1165, 20 Sup. Ct. 976, decided at the 
last term. This involved the validity of certain tax assessments 
made by the city of New Orleans upon the merchandise and stock 
in trade of the plaintiff, which consisted of dry goods imported 
from foreign countries, upon which duties had been levied by and 
paid to the general government. The goods were put up and sold 
in packages, a large number of such packages being inclosed in 
wooden cases or boxes for the purposes of importation. Upon ar¬ 
rival at New Orleans the boxes were opened, the packages taken 
out and sold unbroken. The question was whether the box or 
case containing these packages, or the packages themselves were 
the original packages within the case of Brown v. Maryland, 12 
Wheat. 419, 6 U. Ed. 678. It was conceded that, so long as the 
packages remained in their original cases, they were not subject 


206 


STATE LEGISLATIVE POWER 


to taxation, but the court held that this immunity ceased as soon 
as the boxes were opened. As stated by Mr. Justice Harlan in 
delivering the opinion of the court (p. 508, L. Ed. p. 1169) : 

“In our judgment, the 'original package’ in the present case was 
the box or case in which the goods imported were shipped, and 
when the box or case was opened for the sale or delivery of the 
separate parcels contained in it, each parcel of the goods lost its 
distinctive character as an import, and became property subject to 
taxation by the state as other like property situated within its 
limits. The tax here in question was not in any sense a tax on 
imports nor a tax for the privilege of bringing the things imported 
into the state. It was not a tax on the plaintifl’s goods because 
they were imported from another country, but because at the time 
of the assessment they were in the market for sale in separate par¬ 
cels and therefore subject to be taxed as like property, in the same 
condition, that had its origin in this country. We cannot impute 
to the framers of the Constitution a purpose to make such a dis¬ 
crimination in favor of property imported from other countries as 
would result if we approved the views pressed upon us by the 
plaintiffs. When their goods had been so acted upon as to become 
a part of the general mass of property in the state the plaintiffs 
stood, with respect to liability to state taxation, upon the same 
basis of equality as the owners of like property, the product of 
this country; the only difference being that the importers paid a 
duty to the United States for the privilege of importing their 
goods into this country, and of selling them in the original pack¬ 
ages—a duty imposed for the purpose of raising money to carry 
on the operations of the government, and, in many instances, with 
the intent to protect the industries of this country against foreign 
competition.” 

The case under consideration is really the first one presenting to 
this court distinctly the question whether, in holding that the state 
cannot prohibit the sale in its original package of an article 
brought from another state, the size of the package is material, al¬ 
though some of the expressions in the License Cases seem to fore¬ 
shadow the consequences likely to result from the argument of the 
defendant. * * * [Here follow quotations from the opinion of 

Catron, J., 5 How. at 608, 12 L. Ed. 303, and from Woodbury, J., 
Id. at 625, 12 L. Ed. 311, and also a discussion of various state 
cases dealing with the matter.] 

The real question in this case is whether the size of the package 
in which the importation is actually made is to govern; or, the 
size of the package in which bona fide transactions are carried on 
between the manufacturer and the wholesale dealer residing in 
different states. We hold to the latter view. The whole theory 
of the exemption of the original package from the operation of 
state laws is based upon the idea that the property is imported in 


STATE LEGISLATIVE POWER 


207 


the ordinary form in which, from time immemorial, foreign goods 
have been brought into the country. These have gone at once 
into the hands of the wholesale dealers, who have been in the habit 
of breaking the packages and distributing their contents among 
the several retail dealers throughout the state. It was with refer¬ 
ence to this method of doing business that the doctrine of the ex¬ 
emption of the original package grew up. But taking the words 
'‘original package” in their literal sense, a number of so-called orig- 
itial package manufactories have been started through the coun¬ 
try, whose business it is to manufacture goods for the express pur¬ 
pose of sending their products into other states in minute pack¬ 
ages, that may at once go into the hands of the retail dealers and 
consumers, and thus bid defiance to the laws of the state against 
their importation and sale. In all the cases which have heretofore 
arisen in this court the packages were of such size as to exclude 
the idea that they were to go directly into the hands of the con¬ 
sumer, or be used to evade the police regulations of the state with 
regard to the particular article. No doubt the fact that cigarettes, 
are actually imported in a certain package is strong evidence that 
they are original packages within the meaning of the law; but this 
presumption attaches only when the importation is made in the 
usual manner prevalent among honest dealers, and in a bona fide 
package of a particular size. Without undertaking to determine 
what is the proper size of an original package in each case, evi¬ 
dently the doctrine has no application where the manufacturer 
puts up the package with the express intent of evading the laws of 
another state, and is enabled to carry out his purpose by the facile 
agency of an express company and the connivance of his con¬ 
signee. This court has repeatedly held that, so far from lending 
its authority to frauds upon the sanitary laws of the several states, 
we are bound to respect such laws and to aid in their enforcement, 
so far as can be done without infringing upon the constitutional 
rights of the parties. The consequences of our adoption of de¬ 
fendant’s contention would be far reaching and disastrous. For 
the purpose of aiding a manufacturer in evading the laws of a 
sister state, we should be compelled to recognize anything as an 
original package of beer from a hogshead to a vial; anything as 
a package of cigarettes from an importer’s case to a single paper 
box of ten, or even a single cigarette, if imported separately and 
loosely; anything from a bale of merchandise to a single ribbon, 
provided only the dealer sees fit to purchase his stock outside the 
state and import it in minute quantities. 

There could hardly be stronger evidence of fraud than is shown 
by the facts of this case. * * * And yet we are told that each 

one of these packages is an original package, and entitled to the 
protection of the Constitution of the United States as a separate 
and distinct importation. We can only look upon it as a discred- 


208 


STATE LEGISLATIVE POWER 


itable subterfuge, to which this court ought not to lend its coun¬ 
tenance. If there be any original package at all in this case we 
think it is the basket, and not the paper box. * * ♦ 

Practically the only argument relied upon in support of the 
theory that these packages of ten cigarettes are original packages 
is derivable from the Revised Statutes, § 3392, which requires that 
manufacturers shall put up all cigarettes made by or for them, and 
sold or removed for consumption or use, in packages containing 
ten, twenty, fifty, or one hundred cigarettes each. This, however, 
is solely for the purpose of taxation—a precaution taken for the 
better enforcement of the internal revenue law, and to' be read in 
connection with section 3243, which provides that “the payment 
of any tax imposed by the internal revenue laws for carrying on 
any trade or business shall not be held to exempt any person from 
any penalty or punishment provided by the laws of any state for 
carrying on the same within such state, or in any manner to au¬ 
thorize the commencement or continuance of such trade or busi¬ 
ness contrary to the laws of such state.^^ ♦ * 4c 

Judgment affirmed. 

[WhiT^, J., gave a brief concurring opinion. Brewer, J., with 
whom concurred Fuller, C. J., and Shiras and Peckham, JJ., gave 
a dissenting opinion.] 


See, also, the cases ante, pp. lS-34, under The Three Departments 
of Government. 



THE POLICE POWER 


209 


THE POLICE POWER 
I. In General ^ 


MUTUAL LOAN CO= v, MARTELL (1911) 222 U. S. 225, 232, 
233, 32 Sup. Ct. 74, 56 L. Ed. 175, Mr. Justice McKrnna (affirming 
a Massachusetts judgment which upheld a statute invalidating the 
assignment of future wages without the consent of the wage-earn¬ 
er’s wife and employer) : 

*‘The contention of plaintiff is (1) that the provisions of sections 
7 and 8 deprive it of due process of law. * * * 

“(1) To sustain this contention it is urged that the statute being 
an exercise of the police power of the state, its purpose must have 
‘some clear, real, and substantial connection’ with the preservation 
of the public health, safety, morals, or general welfare; and it is 
insisted that the statute of Massachusetts has not such connection 
and is therefore invalid. 

“This court has had many occasions to define, in general terms, 
the police power, and to give particularity to the definitions by spe¬ 
cial applications. In Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 
561, 592, 26 Sup. Ct. 341, 50 L. Ed. 596, 609, 4 Ann. Cas. 1175, it 
was said that ‘the police power of a state embraces regulations de¬ 
signed to promote the public convenience or the general prosperity, 
as well as regulations designed to promote the public health, the 
public morals, or the public safety,’ and that the validity of a police 
regulation ‘must depend upon the circumstances of each case and 
the character of the regulation, whether arbitrary or reasonable, 
and whether really designed to accomplish a legitimate public pur¬ 
pose.’ 

“In Bacon v. Walker, 204 U. S. 311, 318, 27 Sup. Ct. 289, 51 L. 
Ed. 499, 502, it was decided that the police power is not confined ‘to 
the suppression of what is offensive, disorderly, or unsanitary,’ but 
‘extends to so dealing with the conditions which exist in the state 
as to bring out of them the greatest welfare of its people.’ 

“In a sense, the police power is but another name for the power 
of government; ^ and a contention that a particular exercise of it 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 150-154. 

2 “In its broadest sense, as sometimes defined, it [the police power] includes 
all legislation and almost every function of government.”—New Orleans Gas 
Light Co. V. Louisiana Light & Heat Producing Co., 115 U. S. 650, 661, 6 Sup. 
Ct. 252, 258, 29 L. Ed. 516 (1885), by Harlan, J. 

“It may be said in a general way that the police power extends to all the 

Hall Cases Const.L.—14 



210 


THE POLICE POWER 


offends the due process clause of the Constitution is apt to be very- 
intangible to a precise consideration and answer. Certain general 
principles, however, must be taken for granted. It is certainly the 
province of the state, by its legislature, to adopt such policy as to 
it seems best. There are constitutional limitations, of course, but 
these allow a very comprehensive range of judgment. And within 
that range the Massachusetts statute can be justified. Legislation 
cannot be judged by theoretical standards. It must be tested by 
the concrete conditions which induced it; and this test was ap¬ 
plied by the supreme judicial court of Massachusetts in passing on 
the validity of the statute under review/^ 


LICENSE CASES (1847) 5 How. 504, 582, 583, 12 L. Ed. 256, 
Mr. Chief Justice Tanry (affirming a New Hampshire judgment 
which upheld a state statute regulating the sale of liquor) : 

“It has been said, indeed, that quarantine and health laws are 
passed by the states, not by virtue of a power to regulate com¬ 
merce, but by virtue of their police powers, and in order to guard 
the lives and health of their citizens. This, however, cannot be 
said of the pilot laws, which are yet admitted to be equally valid. 
But what are the police powers of a state? They are nothing more 
or less than the powers of government inherent in every sover¬ 
eignty to the extent of its dominions. And whether a state passes 
a quarantine law, or a law to punish offences, or to establish courts 
of justice, or requiring certain instruments to be recorded, or to 
regulate commerce within its own limits, in every case it exercises 
the same power; that is to say, the power of sovereignty, the 
power to govern men and things within the limits of its dominion. 
It is by virtue of this power that it legislates; and its authority to 
make regulations of commerce is as absolute as its power to pass 
health laws, except in so far as it has been restricted by the Con¬ 
stitution of the United States. And when the validity of a state 
law making regulations of commerce is drawn into question in a 
judicial tribunal, the authority to pass it cannot be made to depend 
upon the motives that may be supposed to have influenced the leg¬ 
islature, nor can the court inquire whether it was intended to guard 
the citizens of the state from pestilence and disease, or to make 
regulations of commerce for the interests and convenience of trade. 

“Upon this question, the object.and motive of the state are of 
no importance, and cannot influence the decision. It is a question 

great public needs. Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 
42 L. Ed. 260. It may be put forth in aid of what is sanctioned by usage, or 
held by the prevailing morality or strong and preponderant opinion to be 
greatly and immediately necessary to the public welfare.”—Noble State Bank 
V. Haskell, 219 U. S. 104, 111, 31 Sup. Ct. 186, 188, 55 L. Ed. 112, 32 L. R. A. 
(N. S.) 1062, Ann. Cas. 1912A, 487 (1911), by Holmes, J. 



IN GENERAL 


211 


of power. Are the states absolutely prohibited by the Constitution 
from making any regulations of foreign commerce? If they are, 
then such regulations are null and void, whatever may have been 
the motive of the state, or whatever the real object of the law; 
and it requires no law of Congress to control or annul them.” 


LAKE SHORE & M. S. RY. CO. v. OHIO ex rel. LAWRENCE 
(1899) 173 U. S. 285, 289, 290-292, 296-298, 19 Sup. Ct. 465, 43 L. 
Ed. 702, Mr. Justice Harlan (upholding a state statute requiring 
railways to stop certain trains at places of 3,000 inhabitants) : 

“In the argument at the bar, as well as in the printed brief of 
counsel, reference was made to the numerous cases in this court 
adjudging that what are called the police powers of the states 
were not surrendered to the general government when the Consti¬ 
tution was ordained, but remained with the several states of the 
Union. And it was asserted with much confidence that, while regu¬ 
lations adopted by competent local authority in order to protect 
or promote the public health, the public morals, or the public safety 
have been sustained where such regulations only incidentally af¬ 
fected commerce among the states, the principles announced in 
former adjudications concjemn, as repugnant to the Constitution of 
the United States, all local regulations that affect interstate com¬ 
merce in any degree if established merely to subserve the public 
convenience. 

“One of the cases cited in support of this position is Hennington 
V. Georgia, 163 U. S. 299, 303, 308, 317, 16 Sup. Ct. 1086, which in¬ 
volved the validity of a statute of Georgia [forbidding the running 
of freight trains on Sunday save in certain cases of necessi- 
ty]. * * * 

“After observing that the argument in behalf of the defendant 
rested upon the erroneous assumption that the statute of Georgia 
was such a regulation of interstate commerce as was forbidden by 
the Constitution without reference to affirmative action by Con¬ 
gress, and not merely a statute enacted by the state under its 
police power, and which, although in some degree affecting inter¬ 
state commerce, did not go beyond the necessities of the case, and 
therefore was valid, at least until Congress intervened, this court, 
upon a review of the adjudged cases, said: ‘These authorities make 
it clear that the legislative enactments of the states, passed under 
their admitted police powers, and having a real relation to the 
domestic peace, order, health, and safety of their people, but which, 
by their necessary operation, affect to some extent or for a limited 
time the conduct of commerce among the states, are yet not invalid 
by force alone of the grant of power to Congress to regulate such 
commerce, and, if not obnoxious to some other constitutional pro- 



212 


THE POLICE POWER 


vision or destructive of some right secured by the fundamental 
law, are to be respected in the courts of the Union until they are 
superseded and displaced by some act of Congress passed in execu¬ 
tion of the power granted to it by the Constitution. Local laws 
of the character mentioned have their source in the powers which 
the states reserved, and never surrendered to Congress, of provid¬ 
ing for the public health, the public morals, and the public safety; 
and are not, within the meaning of the Constitution, and consid¬ 
ered in their own nature, regulations of interstate commerce 
simply because, for a limited time or to a limited extent, they cover 
the field occupied by those engaged in such commerce.’ * ^ * 

^*It is insisted by counsel that these and observations to the 
same effect in different cases show that the police powers of the 
states, when exerted with reference to matters more or less con¬ 
nected with interstate commerce, are restricted in their exercise, 
so far as the national Constitution is concerned, to regulations per¬ 
taining to the health, morals, or safety of the public, and do not 
embrace regulations designed merely to promote the public con¬ 
venience. 

“This is an erroneous view of the adjudications of this court. 
While cases to which counsel refer involved the validity of state 
laws having reference directly to the public health, the public 
morals, or the public safety, in no one of them was there any occa¬ 
sion to determine whether the police powers of the states extended 
to regulations incidentally affecting interstate commerce, but 
which were designed only to promote the public convenience or 
the general welfare. There are, however, numerous decisions by 
this court to the effect that the states may legislate with reference 
simply to the public convenience, subject, of course, to the condi¬ 
tion that such legislation be not inconsistent with the national 
Constitution, nor with any act of Congress passed in pursuance of 
that instrument, nor in derogation of any right granted or secured 
by it. As the question now presented is one of great importance, 
it will be well to refer to some cases of the latter class. [Here are 
discussed various cases upholding state laws regulating the use of 
bridges and rivers and the obligations of carriers.] * * * 

“Now, it is evident that these cases had no reference to the 
health, morals, or safety of the people of the state, but only to the 
public convenience. They recognized the fundamental principle 
that, outside of the field directly occupied by the general govern¬ 
ment under the powers granted to it by the Constitution, all 
questions arising within a state that relate to its internal order, or 
that involve the public convenience or the general good, are pri¬ 
marily for the determination of the state, and that its legislative 
enactments relating to those subjects, and which are not incon¬ 
sistent with the state Constitution, are to be respected and enforced 
in the courts of the Union if they do not by their operation direct- 


IN GENERAL 


213 


ly entrench upon the authority of the United States, or violate 
some right protected by the national Constitution. * * * 

“It may be that such legislation is not within the 'police power’ 
of a state, as those words have been sometimes, although inaccu¬ 
rately, used. But, in our opinion, the power, whether called 'po¬ 
lice,’ 'governmental,’ or 'legislative,’ exists in each state, by ap¬ 
propriate enactments not forbidden by its own Constitution or by 
the Constitution of the United States, to regulate the relative 
rights and duties of all persons and corporations within its juris¬ 
diction, and therefore to provide for the public convenience and 
the public good. This power in the states is entirely distinct from 
any power granted to the general government, although, when ex¬ 
ercised, it may sometimes reach subjects over which national leg¬ 
islation can be constitutionally extended. When Congress acts 
with reference to a matter confided to it by the Constitution, then 
its statutes displace all conflicting local regulations touching that 
matter, although such regulations may have been established in 
pursuance of a power not surrendered by the states to the general 
government. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 U. Ed. 23; 
Sinnot V. Davenport, 22 How. 227, 243, 16 L. Ed. 243; Railway 
Co. V. Haber, 169 U. S. 613, 626, 18 Sup. Ct. 488, 42 L. Ed. 

gyg s|c * *» 

[Shiras, J., gave a dissenting opinion, in which BrejwKr, White, 
and Peckham, JJ., concurred, on the ground that the Ohio statute 
improperly burdened interstate commerce. White, J., also gave a 
dissenting opinion.] 


In re RAPIER (1892) 143 U. S. 110,134,12 Sup. Ct. 374, 36 E. Ed. 
93, Mr. Chief Justice Fuller (upholding the power of the United 
States to exclude lottery matter from the mails) : 

“The states, before the Union was formed, could establish post- 
offices and post-roads, and in doing so could bring into play the 
police power in the protection of their citizens from the use of the 
means so provided for purposes supposed to exert a demoralizing 
influence upon the people. When the power to establish post-of¬ 
fices and post-roads was surrendered to the Congress, it was as a 
complete power; and the grant carried with it the right to exercise 
all the powers which made that power effective. It is not neces¬ 
sary that Congress should have the power to deal with crime or 
immorality within the states in order to maintain that it possesses 
the power to forbid the use of the mails in aid of the perpetration 
of crime or immorality.” 



214 


THE POLICE POWER 


SECOND EMPLOYERS^ LIABILITY CASES (1912) 223 U. 
S. 1, 54, 55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, Mr. 
Justice Van De:vanter (upholding the federal act regulating the 
liability of interstate railway carriers to their employes) : 

“True, prior to the present act, the laws of the several states 
were regarded as determinative of the liability of employers en¬ 
gaged in interstate commerce for injuries received by their em¬ 
ployes while engaged in such commerce. But that was because 
Congress, although empowered to regulate that subject, had not 
acted thereon, and because the subject is one which falls within 
the police power of the states in the absence of action by Congress. 
* * * The inaction of Congress, however, in no wise affected 

its power over the subject. * * * And now that Congress has 

acted, the laws of the states, in so far as they cover the same field, 
are superseded, for necessarily that which is not supreme must 
yield to that which is.” ^ 


II. Scope and Limits of Power * 


L’HOTE V. NEW ORLEANS (1900) 177 U. S. 587, 596-598, 600, 
20 Sup. Ct. 788, 44 L. Ed. 899, Mr. Justice Bre:we:r (sustaining an 
ordinance prescribing limits in that city outside of which no woman 
of lewd character should dwell, as against objections of property 
owners within those limits) : 

“The question * * * jg simply whether one who may own 

or occupy property in or adjacent to the prescribed limits, whether 

3 Regarding the subjects over which Congress has exercised a “police pow¬ 
er” incidental to the powers specifically conferred upon the United States” by 
the Constitution, it has been said (upholding the federal pure food and drugs 
act): “Congress has enacted a safety appliance law for the preservation of 
life and limb. Congress has enacted the anti-trust statute to prevent im¬ 
morality in contracts and business affairs. Congress has enacted the live 
stock sanitation act to prevent cruelty to hnimals. Congress has enacted the 
cattle contagious disease act to more effectively suppress and prevent the 
spread of contagious and infectious diseases of live* stock. Congress has en¬ 
acted a statute to enable the Secretary of Agriculture to establish and main¬ 
tain quarantine districts. Congress has enacted the meat inspection act. 
Congress has enacted a second employer’s liability act. Congress has enacted 
the obscene literature act. Congress has enacted the lottery statute above 
referred to. Congress has enacted (but a year ago) statutes prohibiting the 
sending of liquors by interstate shipment with the privilege of the vendor to 
have the liquors delivered c. o. d., and to prohibit shipments of liquors except 
when the name and address of the consignee and the quantity and kind of liq¬ 
uor is plainly labeled on the package. These statutes, police regulations in 
many respects, are alike in principle to the act of June 30, 1906, under con¬ 
sideration. Can it be possible they are all void?”—Shawnee Milling Co. v. 
Temple (C. C.) 179 Fed. 517, 524 (1910), by McPherson, J. 

4 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 155, 156. 






SCOPE AND LIMITS OP POWER 


215 


occupied as a residence or for other purposes, can prevent the en¬ 
forcement of such an ordinance on the ground that by it his rights 
under the federal Constitution are invaded. 

“In this respect we premise by saying that one of the difficult 
social problems of the day is what shall be done in respect to those 
vocations which minister to and feed upon human weaknesses, ap¬ 
petites, and passions. The management of these vocations comes 
directly within the scope of what is known as the police power. 
They affect directly the public health and morals. Their manage¬ 
ment becomes a matter of growing importance, especially in our 
larger cities, where from the very density of population the things 
which minister to vice tend to increase and multiply. * h* ♦ 

“Obviously, the regulation of houses of ill fame, legislation in 
respect to women of loose character, may involve one of three pos¬ 
sibilities: First, absolute prohibition; second, full freedom in re¬ 
spect to place, coupled with rules of conduct; or, third, a restriction 
of the location of such houses to certain defined limits. Whatever 
course of conduct the legislature may adopt is in a general way con¬ 
clusive upon all courts, state and Federal. It is no part of the 
judicial function to determine the wisdom or folly of a regulation 
by the legislative body in respect to matters of a police nature. 

“Now, this ordinance neither prohibits absolutely nor gives entire 
freedom to the vocation of these women. It attempts to confine 
their domicil, their lives, to certain territorial limits. Upon what 
ground shall it be adjudged that such restriction is unjustifiable; 
that it is an unwarranted exercise of the police power?. Is the 
power to control and regulate limited only as to the matter of ter¬ 
ritory? May that not be one of the wisest and safest methods of 
dealing with the problem? At any rate, can the power to so regu¬ 
late be denied? But given the power to limit the vocation of these 
persons to certain localities, and no one can question the legality 
of the location. The power to prescribe a limitation carries with it 
the power to discriminate against one citizen and in favor of an¬ 
other. Some must suffer by the establishment of any territorial 
boundaries. 

“We do not question what is so earnestly said by counsel for 
plaintiffs in error in respect to the disagreeable results from the 
neighborhood of such houses and people; but if the power to pre¬ 
scribe territorial limits exists, the courts cannot say that the limits 
shall be other than those the legislative body prescribes. If these 
limits hurt the present plaintiffs in error, other limits would hurt 
others. But clearly the inquiry as to the reasonableness or pro¬ 
priety of the limits is a matter for legislative consideration, and 
cannot become the basis of judicial action. The ordinance is an at¬ 
tempt to protect a part of the citizens from .the unpleasant conse¬ 
quences of such neighbors. Because the legislative body is unable 
to protect all, must it be denied the power to protect any? 


216 


THE POLICE POWER 


“It is said that this operates to depreciate the pecuniary value of 
the propertjr belonging to the plaintiffs in error, but a similar re¬ 
sult would follow if other limits were prescribed, and therefore the 
power to prescribe limits could never be exercised, because, what¬ 
ever the limits, it might operate to the pecuniary disadvantage of 
some property holders. 

“The truth is, that the exercise of the police power often works 
pecuniary injury, but the settled rule of this court is that the mere 
fact of pecuniary injury does not warrant the overthrow of legis¬ 
lation of a police character. ^ * Here the ordinance in no 

manner touched the property of the plaintiffs. It subjected that 
property to no burden, it cast no duty or restraint upon it, and only 
in an indirect way can it be said that its pecuniary value was af¬ 
fected by this ordinance. Who can say in advance that in prox¬ 
imity to their property any houses of the character indicated will 
be established, or that any persons of loose character will find near 
by a home? They may go to the other end of the named dis¬ 
trict. All that can be said is that by narrowing the limits within 
which such houses and people must be, the greater the probability 
of their near location. Even if any such establishment should be lo¬ 
cated in proximity, there is nothing in the ordinance to deny the 
ordinary right of the individual to restrain a private nuisance.” 


OTIS AND GASSMAN v. PARKER. 

(Supreme Court of United States, 1903. 187 U. S. 606, 23 Sup. Ct 168, 47 L. 

Ed. 323.) 

[Error to the Supreme Court of California. The state Constitu¬ 
tion made void all contracts for the sale of corporate stock on mar¬ 
gin or for future delivery, and authorized a recovery of any money 
paid on such contracts. Parker sued defendants, stockbrokers, for 
margins paid them on contracts to buy and sell mining stocks. 
It was assumed that the prohibition included all contracts contem¬ 
plating a bona fide acquisition of stock, as well as gambling con¬ 
tracts. A judgment in his favor in the superior court was affirmed 
by the state Supreme Court, and this writ of error was brought.] 
Mr. Justice Holmes. ^ * q'he objection urged against the 

provision in its literal sense is that this prohibition of all sales on 
margin bears no reasonable relation to the evil sought to be cured, 
and therefore falls within the first section of the fourteenth amend¬ 
ment. It is said that it unduly limits the liberty of adult persons 
in making contracts which concern only themselves, and cuts down 
the value of a class of property that often must be disposed of under 
contracts of the prohibited kind if it is to be disposed of to advan¬ 
tage, thus depriving persons of liberty and property without due 



SCOPE AND LIMITS OP POWER 


217 


process of law, and that it unjustifiably discriminates against prop¬ 
erty of that class, while other familiar objects of speculation, such 
as cotton or grain, are not touched, thus depriving persons of the 
equal protection of the laws. 

It is true, no doubt, that neither a state legislature nor a state 
Constitution can interfere arbitrarily with private business or 
transactions, and that the mere fact that an enactment purports to 
be for the protection of public safety, health, or morals, is not con¬ 
clusive upon the courts. Mugler v. Kansas, 123 U. S. 623, 661, 8 
Sup. Ct. 273, 31 L. Ed. 205, 210; Lawton v. Steele, 152 U. S. 133, 
137, 14 Sup. Ct. 499, 38 L. Ed. 385, 388. But general propositions do 
not carry us far. While the courts must exercise a judgment of 
their own, it by no means is true that every law is void which may 
seem to the judges who pass upon it excessive, unsuited to its os¬ 
tensible end, or based upon conceptions of morality with which 
they disagree. Considerable latitude must be allowed for differ¬ 
ences of view, as well as for possible peculiar conditions which this 
court can know but imperfectly, if at all. Otherwise a Constitution,, 
instead of embodying only relatively fundamental rules of right, as 
generally understood by all English-speaking communities, would 
become the partisan of a particular set of ethical or economical 
opinions, which by no means are held semper ubique et ab omnibus. 

Even if the provision before us should seem to us not to have 
been justified by the circumstances locally existing in California 
at the time when it was passed, it is shown by its adoption to have 
expressed a deep-seated conviction on the part of the people con¬ 
cerned as to what that policy required. Such a deep-seated con¬ 
viction is entitled to great respect. If the state thinks that an ad¬ 
mitted evil cannot be prevented except by prohibiting a calling 
or transaction not in itself necessarily objectionable, the courts can¬ 
not interfere, unless, in looking at the substance of the matter, they 
can see that it “is a clear, unmistakable infringement of rights se¬ 
cured by the fundamental law.” Booth v. Illinois, 184 U. S. 425,. 
429, 22 Sup. Ct. 425, 427, 46 L. Ed. 623, 626. No court would de¬ 
clare a usury law unconstitutional, even if every member of it be¬ 
lieved that Jeremy Bentham had said the last word on that subject, 
and had shown for all time that such laws did more harm than good. 
The Sunday laws, no doubt, would be sustained by a bench of 
judges, even if every one of them thought it superstitious to make 
any day holy. Or, to take cases where opinion has moved in the 
opposite direction, wagers may be declared illegal without the aid 
of statute, or lotteries forbidden by express enactment, although at 
an earlier day they were thought pardonable at least. The case 
would not be decided differently if lotteries had been lawful when 
the fourteenth amendment became law, as indeed they were in some 
civilized states. See Ballock v. State, 73 Md. 1, 20 Atl. 184, 8 L. 
R. A. 671, 25 Am. St. Rep. 559. 


218 


THE POLICE POWER 


We cannot say that there might not be conditions of public de¬ 
lirium in which at least a temporary prohibition of sales on margins 
would be a salutary thing. Still less can we say that there might 
not be conditions in which it reasonably might be thought a salu¬ 
tary thing, even if we disagreed with the opinion. Of course, if a 
man can buy on margin he can launch into a much more extended 
venture than where he must pay the whole price at once. If he 
pays the whole price he gets the purchased article, whatever its 
worth may turn out to be. But if he buys stocks on margin he may 
put all his property into the venture, and being unable to keep his 
margins good if the stock market goes down, a slight fall leaves him 
penniless, with nothing to represent his outlay, except that he has 
had the chances of a bet. There is no doubt that purchases on 
margin may be and frequently are used as a means of gambling 
for a great gain or a loss of all one has. It is said that in California, 
when the Constitution was adopted, the whole people were buying 
mining stocks in this way with the result of infinite disaster. Cash- 
man V. Root, 89 Cal. 373, 382, 383, 26 Pac. 883, 12 L. R. A. 511, 23 
Am. St. Rep. 482. If at that time the provision of the Constitution, 
instead of being put there, had been embodied in a temporary act, 
probably no one would have questioned it, and it would be hard to 
take a distinction solely on the ground of its more permanent form. 
Inserting the provision in the Constitution showed, as we have 
said, the conviction of the people at large that prohibition was a 
proper means of stopping the evil. And as was said with regard 
to a prohibition of option contracts in Booth v. Illinois, 184 U. S. 
425, 431, 22 Sup. Ct. 425, 46 L. Ed. 623, 627, we are unwilling to de¬ 
clare the judgment to have been wholly without foundation. ^ ^ ^ 
Judgment affirmed. 

. [Brewer and Peckham, JJ., dissented.] 


JACOBSON V. MASSACHUSETTS. 

(Supreme Court of United States, 1905. 197 U. S. 11, 25 Sup. Ct. 358, 49 L. 

Ed. 643, 3 Ann. Cas. 765.) 

[Error to the Superior Court of Middlesex county, Massachusetts. 
A statute gave local boards of health authority, whenever in their 
opinion necessary for the public health, to require the vaccination 
of all inhabitants of their city or town, except children who pre¬ 
sented medical certificates that they were unfit subjects for vaccina¬ 
tion. Jacobson was convicted in said court of refusing to comply 
with such an order of the Cambridge board of health. His offer to 
prove that vaccination was useless to prevent smallpox, and that it 
was often dangerous was denied by the trial court. The state Su¬ 
preme Court affirmed the conviction.] 



SCOPE AND LIMITS OF POWER 


219 


Mr. Justice Harlan. * * * We come, then, to inquire wheth¬ 

er any right given or secured by the Constitution is invaded by the 
statute as interpreted by the state court. The defendant insists that 
his liberty is invaded when the state subjects him to fine or impris¬ 
onment for neglecting or refusing to submit to vaccination; that 
a compulsory vaccination law is unreasonable, arbitrary, and op¬ 
pressive, and, therefore, hostile to the inherent right of every free- 
rnan to care for his own body and health in such way as to him 
seems best; and that the execution of such a law against one who 
objects to vaccination, no matter for what reason, is nothing short 
of an assault upon his person. But the liberty secured by the Con¬ 
stitution of the United States to every person within its jurisdic¬ 
tion does not import an absolute right in each person to be, at all 
times and in all circumstances, wholly freed from restraint. There 
are manifold restraints to which every person is necessarily sub¬ 
ject for the common good. On any other basis organized society 
could not exist with safety to its members. Society based on the 
rule that each one is a law unto himself would soon be confronted 
with disorder and anarchy. Real liberty for all could not exist 
under the operation of a principle which recognizes the right of 
each individual person to use his own, whether in respect of his 
person or his property, regardless of the injury that may be done 
to others. This court has more than once recognized it as a funda¬ 
mental principle that “persons and property are subjected to all 
kinds of restraints and burdens in order to secure the general com¬ 
fort, health, and prosperity of the state; of the perfect right of 
the legislature to do which no question ever was, or upon acknowl¬ 
edged general principles ever can be, made, so far as natural per¬ 
sons are concerned.” Hannibal & St. J. R. Co. v. Husen, 95 U. S. 
465, 471, 24 U. Ed. 527, 530; Missouri, K.'& T. R. Co. v. Haber, 169 
U. S. 613, 628, 629, 18 Sup. Ct. 488, 42 L. Ed. 878-883; Thorpe v. 
Rutland & B. R. Co., 27 Vt. 148, 62 Am. Dec. 625. * * * 
Applying these principles to the present case, it is to be observed 
that the legislature of Massachusetts required the inhabitants of 
a city or town to be vaccinated only when, in the opinion of the 
board of health, that was necessary for the public health or the 
public safety. The authority to determine for all what ought to 
be done in such an emergency must have been lodged somewhere 
or in some body; and surely it was appropriate for the legislature 
to refer that question, in the first instance, to a board of health com¬ 
posed of persons residing in the locality affected, and appointed, 
presumably, because of their fitness to determine such questions. 
To invest such a body with authority over such matters was not 
an unusual, nor an unreasonable or arbitrary, requirement. Upon 
the principle of self-defense, of paramount necessity, a community 
has the right to protect itself against an epidemic of disease which 
threatens the safety of its members. It is to be observed that 


220 


THE POLICE POWER 


when the regulation in question was adopted smallpox, according 
to the recitals in the regulation adopted by the board of health, 
was prevalent to some extent in the city of Cambridge, and the 
disease was increasing. If such was the situation,—and nothing is 
asserted or appears in the record to the contrary,—if we are to 
attach any value whatever to the knowledge which, it is safe to 
affirm, is common to all civilized peoples touching smallpox and the 
methods most usually employed to eradicate that disease, it cannot 
be adjudged that the present regulation of the board of health was 
not necessary in order to protect the public health and secure the 
public safety. 

Smallpox being prevalent and increasing at Cambridge, the court 
would usurp the functions of another branch of government if it 
adjudged, as matter of law, that the mode adopted under the sanc¬ 
tion of the state, to protect the people at large was arbitrary, and 
not justified by the necessities of the case. We say necessities of 
the case, because it might be that an acknowledged power of a 
local community to protect itself against an epidemic threatening 
the safety of all might be exercised in particular circumstances and 
in reference to particular persons in such an arbitrary, unreason¬ 
able manner, or might go so far beyond what was reasonably re¬ 
quired for the safety of the public, as to authorize or compel the 
courts to interfere for the protection of such persons. Wisconsin, 
M. & P. R. Co. V. Jacobson, 179 U. S. 287, 301, 21 Sup. Ct. 115, 45 L. 
Ed. 194, 201; 1 Dill. Mun. Corp. (4th Ed.) §§ 319-325, and authori¬ 
ties in notes; Freund, Police Power, § 63 et seq. * * jf 

mode adopted by the commonwealth of Massachusetts for the pro¬ 
tection of its local communities against smallpox proved to be 
distressing, inconvenient, or objectionable to some,—if nothing 
more could be reasonably affirmed of the statute in question,—the 
answer is that it was the duty of the constituted authorities pri¬ 
marily to keep in view the welfare, comfort, and safety of the many, 
and not permit the interests of the many to be subordinated to the 
wishes or convenience of the few. 

There is, of course, a sphere within which the individual may 
assert the supremacy of his own will, and rightfully dispute the 
authority of any human government,—especially of any free gov¬ 
ernment existing under a written Constitution, to interfere with 
the exercise of that will. But it is equally true that in every well- 
ordered society charged with the duty of conserving the safety of 
its members the rights of the individual in respect of his liberty may 
at times, under the pressure of great dangers, be subjected to such 
restraint, to be enforced by reasonable regulations, as the safety 
of the general public may demand. An American citizen arriving 
at an American port on a vessel in which, during the voyage, there 
had been cases of yellow fever or Asiatic cholera, although appar¬ 
ently free from disease himself, may yet, in some circumstances. 


SCOPE AND LIMITS OF POWER 


221 


be held in quarantine against his will on board of such vessel or 
in a quarantine station, until it be ascertained by inspection, con¬ 
ducted with due diligence, that the danger of the spread of the 
disease among the community at large has disappeared. The lib¬ 
erty secured by the fourteenth amendment, this court has said, con¬ 
sists, in part, in the right of a person “to live and work where he 
will” (Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. 
Ed. 832) ; and yet he may be compelled, by force if need be, against 
his will and without regard to his personal wishes or his pecuniary 
interests, or even his religious or political convictions, to take his 
place in the ranks of the army of his country, and risk the chance 
of being shot down in its defense. It is not, therefore, true that the 
power of the public to guard itself against imminent danger depends 
in every case involving the control of one’s body upon his willing¬ 
ness to submit to reasonable regulations established by the consti¬ 
tuted authorities, under the sanction of the state, for the purpose 
of protecting the public collectively against such danger. * ^ ^ 

Looking at the propositions embodied in the defendant’s rejected 
offers of proof, it is clear that they are more formidable by their 
number than by their inherent value. Those offers in the main 
seem to have had no purpose except to state the general theory 
of those of the medical profession who attach little or no value to 
vaccination as a means of preventing the spread of smallpox, or 
who think that vaccination causes other diseases of the body. 
What everybody knows the court must know, and therefore the 
state court judicially knew, as this court knows, that an opposite 
theory accords with the common belief, and is maintained by high 
medical authority. We must assume that, when the statute in 
question was passed, the legislature of Massachusetts was not un¬ 
aware of these opposing theories, and was compelled, of necessity, 
to choose between them. It was not compelled to commit a mat¬ 
ter involving the public health and safety to the final decision of a 
court or jury. It is no part of the function of a court or a jury to 
determine which one of two modes was likely to be the most ef¬ 
fective for the protection of the public against disease. That was 
for the legislative department to determine in the light of all the 
information it had or could obtain. It could not properly abdicate 
its function to guard the public health and safety. The state leg¬ 
islature proceeded upon the theory which recognized vaccination as 
at least an effective, if not the best-known, way in which to meet 
and suppress the evils of a smallpox epidemic that imperiled an 
entire population. 

Upon what sound principles as to, the relations existing between 
the different departments of government can the court review this 
action of the legislature? If there is any such power in the judi¬ 
ciary to review legislative action in respect of a matter affecting the 
general welfare, it can only be when that which the legislature has 


222 


THE POLICE POWER 


done comes within the rule that, if a statute purporting to have been 
enacted to protect the public health, the public morals, or the public 
safety, has no real or substantial relation to those objects, or is, 
beyond all question, a plain, palpable invasion of rights secured 
by the fundamental law, it is the duty of the courts to so adjudge, 
and thereby give effect to the Constitution. Mugler v. Kansas, 123 
U. S. 623, 661, 8 Sup. Ct. 273, 31 L. Ed. 205, 210; Minnesota v. 
Barber, 136 U. S. 313, 320, 10 Sup. Ct. 862, 34 L. Ed. 455, 458, 3 
Interst. Com. R. 185; Atkin v. Kansas, 191 U. S. 207, 223, 24 Sup. 
Ct. 124, 48 E. Ed. 148, 158. 

Whatever may be thought of the expediency of this statute, it 
cannot be affirmed to be, beyond question, in palpable conflict with 
the Constitution. Nor, in view of the methods employed to stamp 
out the disease of smallpox, can anyone confidently assert that the 
means prescribed by the state to that end has no real or substan¬ 
tial relation to the protection of the public health and the public 
safety. Such an assertion would not be consistent with the expe¬ 
rience of this and other countries whose authorities have dealt with 
the disease of smallpox. * ^ * [Quotations are here given from 

various sources showing the practice of other countries, and a num¬ 
ber of American state cases are cited upholding vaccination as a 
condition of attending the public schools.] 

The latest case upon the subject of which we are aware is Vie- 
meister v. White, decided very recently by the court of appeals 
of New York. That case involved the validity of a statute exclud¬ 
ing from the public schools all children who had not been vaccin¬ 
ated. * * * [The statute was upheld] the court saying among 

other things; * * * common belief, like common knowl¬ 

edge, does not require evidence to establish its existence, but may be 
acted upon without proof by the legislature and the courts. * * * 
The fact that the belief is not universal is not controlling, for 
there is scarcely any belief that is accepted by every one. The 
possibility that the belief may be wrong, and that science may yet 
show it to be wrong, is not conclusive; for the legislature has the 
right to pass laws which, according to the common belief of the 
people, are adapted to prevent the spread of contagious diseases. 
In a free country, where the government is by the people, through 
their chosen representatives, practical legislation admits of no other 
standard of action, for what the people believe is for the common 
welfare must be accepted as tending to promote the common wel¬ 
fare, whether it does in fact or not. Any other basis would conflict 
with the spirit of the Constitution, and would sanction measures 
opposed to a republican form of government. While we do not 
decide, and cannot decide, that vaccination is a preventive of small¬ 
pox, we take judicial notice of the fact that this is the common be¬ 
lief of the people of the state, and, with this fact as a foundation, 
we hold that the statute in question is a health law, enacted in a 


223 


SCOPE AND LIMITS OF POWER 

reasonable and proper exercise of the police power/* 179 N. Y. 
235, 72 N. E. 97, 70 L. R. A. 796, 103 Am. St. Rep. 859, 1 Ann. Cas. 

334. * * He 

The legislature assumed that some children, by reason of their 
condition at the time, might not be fit subjects of vaccination; and 
it is suggested—and we will not say without reason—that such is 
the case with some adults. But the defendant did not offer to 
prove that, by reason of his then condition, he was in fact not a fit 
subject of vaccination at the time he was informed of the require¬ 
ment of the regulation adopted by the board of health. * * 

Until otherwise informed by the highest court of Massachusetts, 
we are not inclined to hold that the statute establishes the absolute 
rule that an adult must be vaccinated if it be apparent or can be 
shown with reasonable certainty that he is not at the time a fit 
subject of vaccination, or that vaccination, by reason of his then 
condition, would seriously impair his health, or probably cause his 
death. No such case is here presented. It is the cause of an adult 
who, for aught that appears, was himself in perfect health and a fit 
subject of vaccination, and yet, while remaining in the community, 
refused to obey the statute and the regulation adopted in execu¬ 
tion of its provisions for the protection of the public health and the 
public safety confessedly endangered by the presence of a danger¬ 
ous disease. * * * 

Judgment affirmed. 

[Brpw^r and Pe^ckham, JJ., dissent.] 


MUGLER V. KANSAS. 

(Supreme Court of United States, 1887. 123 U. S. 623, 8 Sup. Ct. 273, 31 L. 

Ed. 205.) 

[Writs of error from Supreme Court of Kansas and an appeal 
from the United States Circuit Court for Kansas. Mugler was 
convicted of violating a Kansas statute enacted to carry into ef¬ 
fect an amendment of the state Constitution forbidding the manu¬ 
facture or sale of intoxicating liquor except for medical, mechani¬ 
cal, and scientific purposes. His offences consisted of selling beer 
manufactured before the statute went into effect, and of manu¬ 
facturing beer in a brewery built several years before the adoption 
of the amendment. Both convictions were upheld by the state 
Supreme Court. The third case was a proceeding against one 
Ziebold and his partner to have their brewery closed as a com¬ 
mon nuisance under the statute, and to have them enjoined from 
using the premises for the disposal of liquor. The case was re¬ 
moved to the federal Circuit Court, where the state’s suit was dis¬ 
missed. All cases were then brought here.] 

Mr. Justice Harlan. * * * That legislation by a state pro- 



224 


THE POLICE POWER 


hibiting the manufacture within her limits of intoxicating liquors, 
to be there sold or bartered for general use as a beverage, does 
not necessarily infringe any right, privilege, or immunity secured 
by the Constitution of the United States, is made clear by the 
decisions of this court, rendered before and since the adoption of 
the fourteenth amendment; to some of which, in view of questions 
to be presently considered, it will be well to refer. ^ * [Here 

follow quotations from the License Cases, 5 How. 504, 12 L. Ed. 
256, Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929, Boston Beer 
Co. V. Massachusetts, 97 U. S. 33, 24 L. Ed. 989, and Foster v. 
Kansas ex rel. Johnston, 112 U. S. 206, 5 Sup. Ct. 8, 97, 28 L. Ed. 
696.] 

It is, however, contended, that, although the state may prohibit 
the manufacture of intoxicating liquors for sale or barter within 
her limits, for general use as a beverage, “no convention or legis¬ 
lature has the right, under our form of government, to prohibit 
any citizen from manufacturing for his own use, or for export, or 
storage, any article of food or drink not endangering or affecting 
the rights of others.” The argument made in support of the first 
branch of this proposition, briefly stated, is, that in the implied 
compact between the state and the citizen certain rights are reserv¬ 
ed by the latter, which are guaranteed by the constitutional provi¬ 
sion protecting persons against being deprived of life, liberty, or 
property, without due process of law, and with which the state 
cannot interfere; that among those rights is that of manufacturing 
for one’s use either food or drink; and that while, according to 
the doctrines of the Commune, the state may control the tastes, 
appetites, habits, dress, food, and drink of the people, our system 
of government, based upon the individuality and intelligence of 
the citizen, does not claim to control him, except as to his conduct 
to others, leaving him the sole judge as to all that only affects him¬ 
self. 

It will be observed that the proposition, and the argument made 
in support of it, equally concede that the right to manufacture 
drink for one’s personal use is subject to the condition that such 
manufacture does not endanger or affect the rights of others. If 
such manufacture does prejudicially affect the rights and interests 
of the community, it follows, from the very premises stated, that 
society has the power to protect itself, by legislation, against the 
injurious consequences of that business. As was said in Munn v. 
Illinois, 94 U. S. 113, 124, 24 L. Ed. 77, while power does not exist 
with the whole people to control rights that are purely and exclu¬ 
sively private, government may require “each citizen to so conduct 
himself, and so use his own property, as not unnecessarily to injure 
another.” 

But by whom, or by what authority, it is to be determined 
whether the manufacture of particular articles of drink, either for 


SCOPE AND LIMITS OF POWER 


225 


general use or for the personal use of the maker, will injuriously 
affect the public? Power to determine such questions, so as to 
bind all, must exist somewhere; else society will be at the mercy 
of the few, who, regarding only their own appetites or passions, 
may be willing to imperil the peace and security of the many, pro¬ 
vided only they are permitted to do as they please. Under our sys¬ 
tem that power is lodged with the legislative branch of the govern¬ 
ment. It belongs to that department to exert what are known as 
the police powers of the state, and to determine, primarily what 
measures are appropriate or needful for the protection of the pub¬ 
lic morals, the public health, or the public safety. 

It does not at all follow that every statute enacted ostensibly for 
the promotion of these ends, is to be accepted as a legitimate ex¬ 
ertion of the police powers of the state. There are, of necessity, 
limits beyond which legislation cannot rightfully go. * * ♦ 

therefore, a statute purporting to have been enacted to protect the 
public health, the public morals, or the public safety, has no real or 
substantial relation to those objects, or is a palpable invasion of 
rights secured by the fundamental law, it is the duty of the courts 
to so adjudge, and thereby give effect to the Constitution. 

Keeping in view these principles, as governing the relations of 
the judicial and legislative departments of government with each 
other, it is difficult to perceive any ground for the judiciary to de¬ 
clare that the prohibition by Kansas of the manufacture or sale, 
within her limits, of intoxicating liquors for general use there as a 
beverage, is not fairly adapted to the end of protecting the com¬ 
munity against the evils which confessedly result from the exces¬ 
sive use of ardent spirits. There is no justification for holding that 
the state, under the guise merely of police regulations, is here aim¬ 
ing to deprive the citizen of his constitutional rights; for we cannot 
shut out of view the fact, within the knowledge of all, that the 
public health, the public morals, and the public safety, may be en¬ 
dangered by the general use of intoxicating drinks; nor the fact, 
established by statistics accessible to every one, that the idleness, 
disorder, pauperism, and crime existing in the country are, in some 
degree at least, traceable to this evil. If, therefore, a state deems 
the absolute prohibition of the manufacture and sale, within her 
limits, of intoxicating liquors for other than medical, scientific, and 
manufacturing purposes, to be necessary to the peace and security 
of society, the courts cannot, without usurping legislative func¬ 
tions, override the will of the people as thus expressed by their 
chosen representatives. They have nothing to do with the mere 
policy of legislation. 

Indeed, it is a fundamental principle in our institutions, indispen¬ 
sable to the preservation of public liberty, that one of the separate 
departments of government shall not usurp powers committed by 
Hall Cases Const.L.—15 


226 


THE POLICE POWER 


the Constitution to another department. And so, if, in the judg¬ 
ment of the legislature, the manufacture of intoxicating liquors for 
the maker’s own use, as a beverage, would tend to cripple, if it did 
not defeat, the effort to guard the community against the evils 
attending the excessive use of such liquors, it is not for the courts, 
upon their views as to what is best and safest for the community, 
to disregard the legislative determination of that question. So far 
from such a regulation having no relation to the general end sought 
to be accomplished, the entire scheme of prohibition, as embodied 
in the Constitution and laws of Kansas, might fail, if the right of 
each citizen to manufacture intoxicating liquors for his own use as 
a beverage were recognized. Such a right does not inhere in citi¬ 
zenship. Nor can it be said that government interferes with or im¬ 
pairs any one’s constitutional rights of liberty or of property, when 
it determines that the manufacture and sale of intoxicating drinks, 
for general or individual use, as a beverage, are, or may become, 
hurtful to society, and constitute, therefore, a business in which 
no one may lawfully engage. Those rights are best secured, in 
our government, by the observance, upon the part of all, of such 
regulations as are established by competent authority to promote 
the common good. No one may rightfully do that which the law¬ 
making power, upon reasonable grounds, declares to be prejudicial 
to the general welfare. * * * 

It is contended that, as the primary and principal use of beer is 
as a beverage; as their respective breweries were erected when it 
was lawful to engage in the manufacture of beer for every purpose; 
as such establishments will become of no value as property, or, at 
least, will be materially diminished in value, if not employed in the 
manufacture of beer for every purpose; the prohibition upon their 
being so employed is, in effect, a taking of property for public use 
without compensation, and depriving the citizen of his property 
without due process of law. In other words, although the state, in 
the exercise of her police powers, may lawfully prohibit the manu¬ 
facture and sale, within her limits, of intoxicating liquors to be used 
as a beverage, legislation having that object in view cannot be 
enforced against those who, at the time, happen to own property, 
the chief value of which consists in its fitness for such manufactur¬ 
ing purposes, unless compensation is first made for the diminution 
in the value of their property, resulting from such prohibitory en¬ 
actments. 

This interpretation of the fourteenth amendment is inadmissible. 
It cannot be supposed that the states intended, by adopting that 
amendment, to impose restraints upon the exercise of their powers 
for the protection of the safety, health, or morals of the communi¬ 
ty sh * [Here follow statements of or quotations from 
Butchers’ Union Co. v. Crescent City Co., Ill U. S. 746, 4 Sup. Ct 
652, 28 L. Ed. 585; Stone v. Mississippi, post, p. 461, and New Or- 


SCOPE AND LIMITS OF POWEB 


227 


leans Gas Co. v. Louisiana Light Co., post, p. 464,—all to the effect 
that the state cannot, even by contract, restrict its power to pro¬ 
tect the public health, morals, or safety.] 

The principle, that no person shall be deprived of life, liberty, 
or property, without due process of law, was embodied, in sub¬ 
stance, in the Constitutions of nearly all, if not all, of the states 
at the time of the adoption of the fourteenth amendment; and it 
has never been regarded as incompatible with the principle, equal¬ 
ly vital, because essential to the peace and safety of society, that 
all property in this country is held under the implied obligation 
that the owner’s use of it shall not be injurious to the community. 
Beer Co. v. Massachusetts, 97 U. S. 25, 32, 24 L. Ed. 989; Com¬ 
monwealth V. Alger, 7 Cush. (Mass.) 53. * * * 

As already stated, the present case must be governed by princi¬ 
ples that do not involve the power of eminent domain, in the exer¬ 
cise of which property may not be taken for public use without 
compensation. A prohibition simply upon the use of property for 
purposes that are declared, by valid legislation, to be injurious to 
the health, morals, or safety of the community, cannot, in any just 
sense, be deemed a taking or an appropriation of property for the 
public benefit. Such legislation does not disturb the owner in the 
control or use of his property for lawful purposes, nor restrict his 
right to dispose of it, but is only a declaration by the state that 
its use by any one, for certain forbidden purposes, is prejudicial 
to the public interests. Nor can legislation of that character come 
within the fourteenth amendment, in any case, unless it is apparent 
that its real object is not to protect the community, or to promote 
the general well-being, but, under the guise of police regulation, to 
deprive the owner of his liberty and property, without due process 
of law. The power which the states have of prohibiting such use 
by individuals of their property as will be prejudicial to the health, 
the morals, or the safety of the public, is not—and, consistently 
with the existence and safety of organized society, cannot be— 
burdened with the condition that the state must compensate such 
individual owners for pecuniary losses they may sustain, by reason 
of their not being permitted, by a noxious use of their property, to 
inflict injury upon the community. The exercise of the police 
power by the destruction of property which is itself a public nui¬ 
sance, or the prohibition of its use in a particular way, whereby its 
value becomes depreciated, is very different from taking property 
for public use, or from depriving a person of his property without 
due process of law. In the one case, a nuisance only is abated; 
in the other, unoffending property is taken away from an inno¬ 
cent owner. 

It is true, that, when the defendants in these cases purchased 
or erected their breweries, the laws of the state did not forbid the 
manufacture of intoxicating liquors. But the state did not there- 


228 


THE POLICE POWER 


by give any assurance, or come under an obligation, that its legis¬ 
lation upon that subject would remain unchanged. Indeed, as was 
said in Stone v. Mississippi, above cited, the supervision of the pub¬ 
lic health and the public morals is a governmental power, “con¬ 
tinuing in its nature,” and “to be dealt with as the special exigen¬ 
cies of the moment may require;” and that, “for this purpose, the 
largest legislative discretion is allowed, and the discretion cannot 
be parted with any more than the power itself.” So in Beer Co. 
V. Massachusetts, 97 U. S. 32, 24 L. Ed. 989: “If the public safety 
or the public morals require the discontinuance of any manufacture 
or traffic, the hand of the legislature cannot be stayed from provid¬ 
ing for its discontinuance by any incidental inconvenience which 
individuals or corporations may suffer.” * * ♦ 

Judgments of Kansas Supreme Court affirmed. 

Decree of Circuit Court reversed. 


POWELL V. PENNSYLVANIA. 

(Supreme Court of United States, 1887. 127 U. S. 678, 8 Sup. Ct. 992, 1257, 

32 L. Ed. 253.) 

[Error to the Supreme Court of Pennsylvania. A Pennsylvania 
statute forbade the manufacture, sale, or the keeping with intent 
to sell, of any oleaginous article designed to take the place of butter 
or cheese produced from pure, unadulterated milk or cream. 
Powell was convicted in a county quarter sessions court of violat¬ 
ing this statute by selling and keeping for sale packages of oleo¬ 
margarine plainly labeled and sold as such, which had been law¬ 
fully made in the state prior to the passage of the statute. The 
trial court refused to allow Powell to prove that the articles sold by 
him were wholesome articles of food, cleanly manufactured, and 
only differed from dairy butter in composition, in that they con¬ 
tained a slightly smaller percentage of butterine, a substance giv¬ 
ing flavor to butter, but adding nothing to its wholesomeness. The 
conviction was affirmed by the state Supreme Court.] 

Mr. Justice Hari^an. * * * q'his case in its important as¬ 
pects is governed by the principles announced in Mugler v. Kan¬ 
sas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. * * * The 
question, therefore, is whether the prohibition of the manufacture 
out of oleaginous substances, or out of any compound thereof other 
than that produced from unadulterated milk or cream from un¬ 
adulterated milk, of an article designed to take the place of but¬ 
ter or cheese produced from pure unadulterated milk or cream 
from unadulterated milk, or the prohibition upon the manufacture 
of any imitation or adulterated butter or cheese, or upon the sell¬ 
ing or offering for sale, or having in possession with intent to sell, 



SCOPE AND LIMITS OF POWER 


229 


the same, as an article of food, is a lawful exercise by the state of 
the power to protect, by police regulations, the public health. 

The main proposition advanced by the defendant is that his en¬ 
joyment upon terms of equality with all others in similar circum¬ 
stances of the privilege of pursuing an ordinary calling or trade, 
and of acquiring, holding, and selling property, is an essential part 
of his rights of liberty and property, as guaranteed by the four¬ 
teenth amendment. The court assents to this general proposition 
as embodying a sound principle of constitutional law. But it 
cannot adjudge that the defendant’s rights of liberty and property, 
as thus defined, have been infringed by the statute of Pennsylvania, 
without holding that, although it may have been enacted in good 
faith for the objects expressed in its title, namely, to protect the 
public health and to prevent the adulteration of dairy products and 
fraud in the sale thereof, it has, in fact, no real or substantial re¬ 
lation to those objects. Mugler v. Kansas, 123 U. S. 623, 661, 8 
Sup. Ct. 273, 31 L. Ed. 205. The court is unable to affirm that this 
legislation has no real or substantial relation to such objects. 

It will be observed that the offer in the court below was to 
show by proof that the particular articles the defendant sold, and 
those in his possession for sale, in violation of the statute, were, in 
fact, wholesome or nutritious articles of food. It is entirely con¬ 
sistent with that offer that many, indeed, that most kinds of oleo¬ 
margarine butter in the market contain ingredients that are or may 
become injurious to health. The court cannot say, from anything 
of which it may take judicial cognizance, that such is not the fact. 
Under the circumstances disclosed in the record, and in obedience 
to settled rules of constitutional construction, it must be assumed 
that such is the fact. “Every possible presumption,” Chief Justice 
Waite said, speaking for the court in Sinking Fund Cases, 99 
U. S. 700, 718, 25 L. Ed. 496, “is in favor of the validity of a stat¬ 
ute, and this continues until the contrary is shown beyond a ration¬ 
al doubt. One branch of the government cannot encroach on the 
domain of another without danger. The safety of our institutions 
depends in no small degree on a strict observance of this salutary 
rule.” See, also, Fletcher v. Peck, 6 Cranch, 87, 128, 3 L. Ed. 162; 
Dartmouth College v. Woodward, 4 Wheat. 518, 625, 4 L. Ed. 
629; Livingston V. Darlington, 101 U. S. 407,25 L. Ed. 1015. 

Whether the manufacture of oleomargarine, or imitation butter, 
of the kind described in the statute, is, or may be, conducted in 
such a way, or with such skill and secrecy, as to baffle ordinary 
inspection, or whether it involves such danger to the public health 
as to require, for the protection of the people, the entire suppres¬ 
sion of the business, rather than its regulation in such manner as 
to permit the manufacture and sale of articles of that class that 
do not contain noxious ingredients, are questions of fact and of 
public policy which belong to the legislative department to deter> 


230 


THE POLICE POWER 


mine. And as it does not appear upon the face of the statute, or 
from any facts of which the court must take judicial cognizance, 
that it infringes rights secured by the fundamental law, the legis¬ 
lative determination of those questions is conclusive upon the 
courts. It is not a part of their functions to conduct investigations 
of facts entering into questions of public policy merely, and to 
sustain or frustrate the legislative will, embodied in statutes, as 
they may happen to approve or disapprove its determination of 
such questions. The power which the legislature has to promote 
the general welfare is very great, and the discretion which that 
department of the government has, in the employment of means 
to that end, is very large. While both its power and its discretion 
must be so exercised as not to impair the fundamental rights of 
life, liberty, and property; and while, according to the principles 
upon which our institutions rest, “the very idea that one man may 
be compelled to hold his life, or the means of living, or any ma¬ 
terial right essential to the enjoyment of life, at the mere will of 
another, seems to be intolerable in any country where freedom 
prevails, as being the essence of slavery itselfyet, “in many cases 
of mere administration, the responsibility is purely political, no 
appeal lying except to the ultimate tribunal of the public judg¬ 
ment, exercised either in the pressure of public opinion or by means 
of the suffrage.” Yick Wo v. Hopkins, 118 U. S. 370, 6 Sup. Ct. 
1064, 30 L. Ed. 220. 

The case before us belongs to the latter class. The Legislature 
of Pennsylvania, upon the fullest investigation, as we must con¬ 
clusively presume, and upon reasonable grounds, as must be as¬ 
sumed from the record, has determined that the prohibition of the 
sale, or offering for sale, or having in possession to sell, for pur¬ 
poses of food, of any article manufactured out of oleaginous sub¬ 
stances or compounds other than those produced from unadulter¬ 
ated milk or cream from unadulterated milk, to take the place of 
butter produced from unadulterated milk or cream from unadulter¬ 
ated milk, will promote the public health, and prevent frauds in 
the sale of such articles. If all that can be said of this legislation 
is that it is unwise, or unnecessarily oppressive to those manu¬ 
facturing or selling wholesome oleomargarine, as an article of 
food, their appeal must be to the legislature, or to the ballot-box, 
not to the judiciary. The latter cannot interfere without usurping 
powers committed to another department of government. 

It is argued, in behalf of the defendant, that if the statute in 
question is sustained as a valid exercise of legislative power, then 
nothing stands in the way of the destruction by the legislative 
department of the constitutional guarantees of liberty and proper¬ 
ty. But the possibility of the abuse of legislative power does not 
disprove its existence. That possibility exists even in reference 
to powers that are conceded to exist. Besides, the judiciary de- 


SCOPE AND LIMITS OF POWER 


231 


partment is bound not to give effect to statutory enactments that 
are plainly forbidden by the Constitution. This duty, the court 
has said, is always one of extreme delicacy; for, apart from the 
necessity of avoiding conflicts between co-ordinate branches of 
the government, whether state or national, it is often difficult to 
determine whether such enactments are within the powers grant¬ 
ed to or possessed by the legislature. Nevertheless, if the incom¬ 
patibility of the Constitution and the statute is clear or palpable, 
the courts must give effect to the former. And such would be the 
duty of the court if the state legislature, under the pretence of 
guarding the public health, the public morals, or the public safety, 
should invade the rights of life, liberty, or property, or other rights, 
secured by the supreme law of the land. * * * 

Judgment affirmed. 

[Mr. Justice Fii:ld gave a dissenting opinion.] 


DENT V. WEST VIRGINIA. 

(Supreme Court of United States, 1889. 129 U. S. 114, 9 Sup. Ct. 231, 32 U. 

Ed. 623.) 

[Error to the Supreme Court of West Virginia. A statute of 
1882 made it a misdemeanor to practice medicine in the state un¬ 
less the practitioner obtained a certificate from the state board of 
health that he was a graduate of a reputable medical college, or 
upon examination by this board was found qualified to practice 
medicine, or had practiced medicine continuously in the state for 
ten years prior to March 8, 1881. Dent had practiced in the state 
continuously from 1876, and did not comply with any of the above 
alternative qualifications. His conviction in the circuit court for a 
violation of the statute in 1882 was affirmed by the state Supreme 
Court. He alleged that the statute violated the fourteenth amend¬ 
ment, in depriving him without due process of law of a vested 
right to practice his profession.] 

Mr. Justice Fie:ld. * * It is undoubtedly the right of 
every citizen of the United States to follow any lawful calling, 
business, or profession he may choose, subject only to such re¬ 
strictions as are imposed upon all persons of like age, sex, and 
condition. This right may in many respects be considered as a 
distinguishing feature of our republican institutions. Here all 
vocations are open to every one on like conditions. All may be 
pursued as sources of livelihood, some requiring years of study 
and great learning for their successful prosecution. The interest, 
or, as it is sometimes termed, the ‘‘estate,” acquired in them— 
that is, the right to continue their prosecution—is often of great 
value to the possessors, and cannot be arbitrarily taken from 
them, any more than their real or personal property can be thus 



232 


THE POLICE POWER 


taken. But there is no arbitrary deprivation of such right where 
its exercise is not permitted because of a failure to comply with 
conditions imposed by the state for the protection of society. The 
power of the state to provide for the general welfare of its people 
authorizes it to prescribe all such regulations as in its judgment 
will secure or tend to secure them against the consequences of 
ignorance and incapacity, as well as of deception and fr^.ud. As 
one means to this end it has been the practice of different states, 
from time immemorial, to exact in many pursuits a certain de¬ 
gree of skill and learning upon which the community may confi¬ 
dently rely; their possession being generally ascertained upon an 
examination of parties by competent persons, or inferred from a 
certificate to them in the form of a diploma or license from an 
institution established for instruction on the subjects, scientific 
and otherwise, with which such pursuits have to deal. The nature 
and extent of the qualifications required must depend primarily 
upon the judgment of the state as to their necessity. If they are 
appropriate to the calling or profession, and attainable by reason¬ 
able study or application, no objection to their validity can be 
raised because of their stringency or difficulty. It is only when 
they have no relation to such calling or profession, or are unat¬ 
tainable by such reasonable study and application, that they can 
operate to deprive one of his right to pursue a lawful vocation. 

Few professions require more careful preparation by one who 
seeks to enter it than that of medicine. It has to deal with all 
those subtle and mysterious influences upon which health and life 
depend, and requires not only a knowledge of the properties of 
vegetable and mineral substances, but of the human body in all its 
complicated parts, and their relation to each other, as well as their 
influence upon the mind. The physician must be able to detect 
readily the presence of disease, and prescribe appropriate remedies 
for its removal. Every one may have occasion to consult him, 
but comparatively few can judge of the qualifications of learning 
and skill which he possesses. Reliance must be placed upon the 
assurance given by his license, issued by an authority competent 
to judge in that respect, that he possesses the requisite qualifica¬ 
tions. Due consideration, therefore, for the protection of society 
may well induce the state to exclude from practice those who have 
not such a license, or who are found upon examination not to be 
fully qualified. The same reasons which control in imposing con¬ 
ditions, upon compliance with which the physician is allowed to 
practice in the first instance, may call for further conditions as 
new modes of treating disease are discovered, or a more thorough 
acquaintance is obtained of the remedial properties of vegetable 
and mineral substances, or a more accurate knowledge is acquired 
cf the human system and of the agencies by which it is affected. 
It would not be deemed a matter for serious discussion that a 


SCOPE AND LIMITS OF POWER 


23S 


knowledge of the new acquisitions of the profession, as it from 
time to time advances in its attainments for the relief of the sick 
and suffering, should be required for continuance in its practice, 
but for the earnestness with which the plaintiff in error insists 
that by being compelled to obtain the certificate required, and 
prevented from continuing in his practice without it, he is de¬ 
prived of his right and estate in his profession without due pro¬ 
cess of law. We perceive nothing in the statute which indicates 
an intention of the legislature to deprive one of any of his rights. 
No one has a right to practice medicine without having the neces¬ 
sary qualifications of learning and skill; and the statute only re¬ 
quires that whoever assumes, by offering to the community his 
services as a physician, that he possesses such learning and skill, 
shall present evidence of it by a certificate or license from a body 
designated by the state as competent to judge of his qualifica¬ 
tions. * * * 

There is nothing of an arbitrary character in the provisions of 
the statute in question. It applies to all physicians, except those 
who may be called for a special case from another state. It im¬ 
poses no conditions which cannot be readily met; and it is made 
enforceable in the mode usual in kindred matters,—that is, by 
regular proceedings adapted to the case. It authorizes an exam¬ 
ination of the applicant by the board of health as to his qualifica¬ 
tions when he has no evidence of them in the diploma of a repu¬ 
table medical college in the school of medicine to which he be¬ 
longs, or has not practiced in the state a designated period before 
March, 1881. If, in the proceedings under the statute, there should 
be any unfair or unjust action on the part of the board in refusing 
him a certificate, we doubt not that a remedy would be found in the 
courts of the state. But no such imputation can be made, for the 
plaintiff in error did not submit himself to the examination of the 
board after it had decided that the diploma he presented was in¬ 
sufficient. * * ^ 

Judgment affirmed.® 

6 “We cannot close our eyes to the fact that legislation of this kind is on 
the increase. Like begets like, and every legislative session brings forth some 
new act in the interest of some new trade or occupation. The doctor, the 
lawyer, the druggist, the dentist, the barber, the horseshoer, and the plumber 
have already received favorable consideration at the hands of our Legislature, 
and the end is not yet, for the nurse and the undertaker are knocking at the 
door. It will not do to say that any occupation which may remotely affect 
the public health is subject to this kind of legislation and control. Our health, 
our comfort, and our well-being are materially affected by all of our sur¬ 
roundings—by the houses we live in, the clothes we wear, and the food we 
eat. The safety of the traveling public depends in no small degree on the 
skill and capacity of the section crews that build and repair our railroads, yet 
are we on this account to add the architect, the carpenter, the tailor, the 
shoemaker, those who produce and prepare our food, and all the rest to the 
ever-growing list? If so, it will be but a short time before a man cannot en¬ 
gage in honest toil to earn his daily bread without first purchasing a license 
or permit from some board or commission. The public health is entitled to 


234 


THE POLICE POWER 


CITY OR CHICAGO v. NETCHER. 

(Supreme Court of Illinois, 1899. 183 Ill. 104, 55 N. E. 707, 48 L. R. A. 261, 
75 Am. St. Rep. 93.) 

[Appeal from a judgment of the Cook county criminal court 
holding invalid certain city regulations of department stores. Chi¬ 
cago ordinances forbade provisions to be exposed for sale where 
dry goods, clothing, jewelry, and drugs were sold; or for liquor to 
be sold where dry goods, clothing, jewelry, or hardware were kept 
for sale. Defendant sold all of these articles at his department 
store in Chicago (the liquor being sold only in sealed packages and 
not to be drunk on the premises) and was prosecuted therefor.] 

Mr. Chief Justice Cartwright. incorporation act 

relied upon confers upon cities organized under the act the right to 
regulate the sale of provisions, with the object of promoting or 
preserving the public health, where the regulation tends to serve 
that purpose. But this ordinance does not regulate the business 
of selling provisions, nor prescribe the manner in which the busi¬ 
ness shall be carried on. It merely prohibits persons engaged in 
the business of selling dry goods, clothing, jewelry, and drugs 
from selling in their stores the provisions enumerated in the ordi¬ 
nance. It permits a person to sell in any place or manner, provid¬ 
ed, only, that he does not at the same time sell certain other 
things. A dealer may sell provisions at the same place with hard¬ 
ware, furniture, boots and shoes, hats and caps, millinery, books 
and stationery, crockery and glassware, carpets, confectionery, 
wooden ware, wall paper, or any other sort of merchandise except 
dry goods, clothing, jewelry, and drugs. This is not a regulation, 
but a prohibition, and a purely arbitrary one, which attempts to 
deprive certain persons of exercising a right which has always 
been lawful, and has been heretofore exercised throughout the 
state and country without question. 

The ordinance is also an attempted interference by the city with 
rights guaranteed to the defendant by the Constitutions of the 

consideration at the hands of the legislative department of the government, 
but it must be remembered that liberty does not occupy a secondary place in 
our fundamental law. Under some of the acts to which we have referred 
members of the board of health form part of the examining board, but our 
act has not even this saving grace. By its terms two master plumbers and 
one journeyman plumber are constituted the guardians of the public health 
and welfare. We are not permitted to inquire into the motive of the Legis¬ 
lature, and yet, why should a court blindly declare that the public health is 
involved, when all the rest of mankind know full well that the control of the 
plumbing business by the board and its licensees is the sole end in view. We 
are satisfied that the act has no such relation to the public health as will sus¬ 
tain it as a police or sanitary measure, and that its interference with the lib¬ 
erty of the citizen brings it in direct confiict with the Constitution of the 
United States.”—Rudkin, J., in State ex rel. Richey v. Smith, 42 Wash. 237 
248, 249, 84 Pac. 851, 854 (5 L. R. A. [N. S.] 674, 114 Am. St. Rep. 114, 7 Ann. 
Cas. 577) (1906) (collecting cases), holding invalid an act requiring journeyman 
plumbers to be examined and licensed by a state board. 


SCOPE AND LIMITS OF POWER 


235 


United States and of this state. The questions involved are not 
new. They have been before this and other courts throughout this 
country in numerous cases, and the rights of the citizen, as 
against such interference, have been frequently defined, and uni¬ 
formly upheld. These Constitutions insure to every person lib¬ 
erty, and the protection of his property rights, and provide that 
he shall not be deprived of life, liberty, or property without due 
process of law. The liberty of the citizen includes the right to ac¬ 
quire property, to own and use it, to buy and sell it. It is a neces¬ 
sary incident to the ownership of property that the owner shall 
have a right to sell or barter it, and this right is protected by the 
constitution as such an incident of ownership. When an owner 
is deprived of the right to expose for sale and sell his property, he 
is deprived of property, within the meaning of the constitution, by 
taking away one of the incidents of ownership. Liberty includes 
the right to pursue such honest calling or avocation as the citizen 
may choose, subject only to such restrictions as may be necessary 
for the protection of the public health, morals, safety, and wel¬ 
fare. * ♦ * 

It is not claimed in the argument for the city that the selling of 
the different kinds of merchandise mentioned in the ordinance in 
the same building tends in any way to affect the safety, health, 
morals, comfort, or welfare of the public. No attempt is made to 
suggest any grounds upon which the ordinance can be justified as 
an exercise of the police power of the city or the state. It cer¬ 
tainly cannot be contended that there is anything in the character 
of dry goods, clothing, jewelry, and drugs which renders it dan¬ 
gerous to the public, or inimical to the general welfare, that they 
should be sold in the same building with provisions. General 
stores have always dealt in all kinds of merchandise, and no one 
has ever imagined that the comfort, safety, or welfare of the pub¬ 
lic was in any manner or to any extent injured or prejudiced by 
them. Public health and public comfort are in no way affected by 
selling the different kinds of merchandise enumerated in different 
departments of the same building, and would not be if the same 
clerk should sell them; nor would the public welfare or comfort 
be increased by compelling a customer to buy one kind of mer¬ 
chandise in one store and another in some other store. In Meyers 
V. Baker, 120 Ill. 567, 12 N. E. 79, 60 Am. Rep. 580, the act pro¬ 
hibiting the establishment of any tent, booth, or place of vending 
provisions or refreshments within a certain distance of a camp 
meeting was sustained as a police regulation tending to prevent 
disturbance or disorderly conduct. But this ordinance has no 
such purpose. It is plain that its object is not to protect the 
health, morals, or safety of the public, or to accomplish any object 
falling within the police power. It is a mere attempt to deny a 
property right to a particular class in the community, where all 


23G 


THE POLICE POWER 


Other members of the community are left to enjoy it. It is imma¬ 
terial whether such a denial is in a statute or in an ordinance passed 
by virtue of a statute. It is equally invalid in either case. * * * 

[After referring to the power of the state to regulate liquor¬ 
selling:] This ordinance, however, is not an exercise of the police 
power for the protection of the public from the injurious effects 
of the liquor business. It is not aimed at the suppression of the 
business, either in certain localities or upon any ground of police 
regulation, but is directed solely against the sale by certain per¬ 
sons in their places of business; that is, by those who also sell 
dry goods, clothing, jewelry, or hardware. The city of Chicago 
has not seen fit to prohibit the sale of liquor, either generally or 
in the district of the city where defendant’s store is kept. It has 
established its policy with reference to that business, and defend¬ 
ant has complied with its ordinances, so as to be entitled to sell 
liquor in his store, unless this ordinance constitutes a valid pro¬ 
hibition against his doing so. It is apparent that, if there is any 
evil in permitting a sealed bottle of liquor to be sold from a store 
where dry goods, clothing, jewelry, or hardware are sold the same 
evils would result from the sale from any other kind of a store. 
The ordinance permits the dealer in all kinds of merchandise, ex¬ 
cept dry goods, clothing, jewelry, and hardware, to sell liquor 
from his store, and the city cannot arbitrarily discriminate against 
the defendant without any basis or ground for the discrimination. 
Special privileges are not to be granted to favored persons in the 
liquor business any more than in any other business. Zanone v. 
Mound City, 103 Ill. 552. * * * 

Judgment affirmed. 


MUNN V. ILLINOIS. 

(Supreme Court of United States, 1876. 94 U. S. 113, 24 L. Ed. 77.) 

[Error to the Supreme Court of Illinois, which had upheld a 
conviction of Munn and Scott for violating a state statute fixing 
maximum rates for grain elevator charges. Other facts appear in 
the opinion.] 

Mr. Chief Justice Waite;. The question to be determined in this 
case is whether the General Assembly of Illinois can, under the 
limitations upon the legislative power of the states imposed by the 
Constitution of the United States, fix by law the maximum of 
charges for the storage of grain in warehouses at Chicago and 
other places in the state having not less than one hundred thou¬ 
sand inhabitants, “in which grain is stored in bulk, and in which 
the grain of different owners is mixed together, or in which grain 
is stored in such a manner that the identity of different lots or 
parcels cannot be accurately preserved.” * * ♦ 



SCOPE AND LIMITS OP POWER 


237 


The Constitution contains no definition of the word ^‘deprive,” 
as used in the fourteenth amendment. To determine its significa¬ 
tion, therefore, it is necessary to ascertain the effect which usage 
has given it, when employed in the same or a like connection. 

While this provision of the amendment is new in the Constitu¬ 
tion of the United States, as a limitation upon the powers of the 
states, it is old as a principle of civilized government. It is found 
in Magna Charta, and, in substance if not in form, in nearly or 
quite all the constitutions that have been from time to time adopt¬ 
ed by the several states of the Union. By the fifth amendment, it 
was introduced into the Constitution of the United States as a 
limitation upon the powers of the national government, and by the 
fourteenth, as a guarantee against any encroachment upon an 
acknowledged right of citizenship by the legislatures of the 
states. ^ * 

When one becomes a member of society, he necessarily parts 
with some rights or privileges which, as an individual not affected 
by his relations to others, he might retain. “A body politic,” as 
aptly defined in the preamble of the Constitution of Massachusetts, 
‘‘is a social compact by which the whole people covenants with 
each citizen, and each citizen with the whole people, that all shall 
be governed by certain laws for the common good.” This does 
not confer power upon the whole people to control rights which 
are purely and exclusively private (Thorpe v. R. & V. Railroad 
Co., 27 Vt. 143, 62 Am. Dec. 625) ; but it does not authorize the es¬ 
tablishment of laws requiring each citizen to so conduct himself, 
and so use his own property, as not unnecessarily to injure an¬ 
other. This is the very essence of government, and has found ex¬ 
pression in the maxim “Sic utere tuo ut alienum non Isedas.” From 
this source come the police powers, which, as was said by Mr. 
Chief Justice Taney in the License Cases, 5 How. 583, 12 L. Ed. 
256, “are nothing more or less than the powers of government in¬ 
herent in every sovereignty, * * * that is to say, * * * 

the power to govern men and things.” Under these powers the 
government regulates the conduct of its citizens one towards 
another, and the manner in which each shall use his own property, 
when such regulation becomes necessary for the public good. In 
their exercise it has been customary in England from time im¬ 
memorial, and in this country from its first colonization, to regu¬ 
late ferries, common carriers, hackmen, bakers, millers, wharfin¬ 
gers, innkeepers, &c., and in so doing to fix a maximum of charge 
to be made for services rendered, accommodations furnished, and 
articles sold. To this day, statutes are to be found in many of 
the states upon some or all these subjects; and we think it has 
never yet been successfully contended that such legislation came 
within any of the constitutional prohibitions against interference 
with private property. With the fifth amendment in force Con- 


238 


THE POLICE POWER 


gress, in 1820, conferred power upon the city of Washington ‘'to 
regulate * * * the rates of wharfage at private wharves, 

* * * the sweeping of chimneys, and to fix the rates of fees 

therefor, * * * the weight and quality of bread,” 3 Stat. 

587, § 7; and, in 1848, “to make all necessary regulations respecting 
hackney carriages and the rates of fare of the same, and the rates 
of hauling by cartmen, wagoners, carmen, and draymen, and the 
rates of commission of auctioneers,” 9 Id. 224, § 2. 

From this it is apparent that, down to the time of the adoption 
of the fourteenth amendment, it was not supposed that statutes 
regulating the use, or even the price of the use, of private proper¬ 
ty necessarily deprived an owner of his property without due 
process of law. Under some circumstances they may, but not un¬ 
der all. The amendment does not change the law in this particu¬ 
lar : it simply prevents the states from doing that which will oper¬ 
ate as such a deprivation. 

This brings us to inquire as to the principles upon which this 
power of regulation rests, in order that we may determine what 
is within and what without its operative effect. Looking, then, to 
the common law, from whence came the right which the Constitu¬ 
tion protects, we find that when private property is “affected with 
a public interest, it ceases to be juris privati only.” This was said 
by Lord Chief Justice Hale more than two hundred years ago, in 
his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has 
been accepted without objection as an essential element in the law 
of property ever since. Property does become clothed with a pub¬ 
lic interest when used in a manner to make it of public conse¬ 
quence, and affect the community at large. When, therefore, one 
devotes his property to a use in which the public has an interest, 
he, in effect, grants to the public an interest in that use, and must 
submit to be controlled by the public for the common good, to the 
extent of the interest he has thus created. He may withdraw 
his grant by discontinuing the use; but, so long as he maintains 
the use, he must submit to the control. * * [Here follow 

quotations from Lord Hale, regarding ferries and wharves, and 
from Aldnutt v. Inglis, 12 East, 527, regarding warehouses.] 

In later times, the same principle came under consideration in 
the Supreme Court of Alabama. That court was called upon, in 
1841, to decide whether the power granted to the city of Mobile 
to regulate the weight and price of bread was unconstitutional, and 
it was contended that “it would interfere with the right of the 
citizen to pursue his lawful trade or calling in the mode his judg¬ 
ment might dictate”; but the court said, “there is no motive 

* * * for this interference on the part of the legislature with 

the lawful actions of individuals, or the mode in which private 
property shall be enjoyed, unless such calling affects the public 
interest, or private property is employed in a manner which direct- 


SCOPE AND LIMITS OF POWER 


23 » 


ly affects the body of the people. Upon this principle, in this state,, 
tavernkeepers are licensed; * * ^ and the county court is re¬ 
quired, at least once a year, to settle the rates of innkeepers. Upon 
the same principle is founded the control which the legislature has 
always exercised in the establishment and regulation of mills, fer¬ 
ries, bridges, turnpike roads, and other kindred subjects.” Mobile 
V. Yuille, 3 Ala. 140, 36 Am. Dec. 441. 

From the same source comes the power to regulate the charges 
of common carriers, which was done in England as long ago as 
the third year of the reign of William and Mary, and continued 
until within a comparatively recent period. And in the first stat¬ 
ute we find the following suggestive preamble, to wit; “And 
whereas divers wagoners and other carriers by combination 
amongst themselves, have raised the prices of carriage of goods in 
many places to excessive rates, to the great injury of the trade: 
Be it, therefore, enacted,” etc. 3 W. & M. c. 12, § 24; 3 Stat. at 
Large (Great Britain) 481. 

Common carriers exercise a sort of public office, and have 
duties to perform in which the public is interested. New Jersey 
Nav. Co. V. Merchants' Bank, 6 How. 382, 12 L. Ed. 465. Their 
business is, therefore, “affected with a public interest,” within the 
meaning of the doctrine which Lord Hale has so forcibly stated. 

But we need not go further. Enough has already been said to 
show that, when private property is devoted to a public use, it is 
subject to public regulation. It remains only to ascertain wheth¬ 
er the warehouses of these plaintiffs in error, and the business 
which is carried on there, come within the operation of this prin¬ 
ciple. 

For this purpose we accept as true the statements of fact con¬ 
tained in the elaborate brief of one of the counsel of the plain¬ 
tiffs in error. From these it appears that “the great producing 
region of the West and Northwest sends its grain by water and 
rail to Chicago, where the greater part of it is shipped by vessel 
for transportation to the seaboard by the Great Lakes, and some 
of it is forwarded by railway to the Eastern ports. * * * Ves¬ 

sels, to some extent, are loaded in the Chicago harbor, and sailed 
through the St. Lawrence directly to Europe. * * * 'phg 

quantity [of grain] received in Chicago has made it the greatest 
grain market in the world. This business has created a demand 
for means by which the immense quantity of grain can be handled 
or stored, and these have been found in grain warehouses, which 
are commonly called elevators, because the grain is elevated from 
the boat or car, by machinery operated by steam, into the bins 
prepared for its reception, and elevated from the bins, by a like pro¬ 
cess, into the vessel or car which is to carry it on. * ♦ * 

this way the largest traffic between the citizens of the country 
north and west of Chicago and the citizens of the country lying 


240 


THE POLICE POWER 


on the Atlantic coast north of Washington is in grain which 
passes through the elevators of Chicago. In this way the trade in 
grain is carried on by the inhabitants of seven or eight of the great 
states of the West with four or five of the states lying on the sea¬ 
shore, and forms the largest part of interstate commerce in these 
states. The grain warehouses or elevators in Chicago are immense 
structures, holding from 300,000 to 1,000,000 bushels at one time, 
according to size. They are divided into bins of large capacity 
and great strength. * * ♦ They are located with the river 

harbor on one side and the railway tracks on the other; and the 
grain is run through them from car to vessel, or boat to car, as 
may be demanded in the course of business. It has been found 
impossible to preserve each owner’s grain separate, and this has 
given rise to a system of inspection and grading, by which the 
grain of different owners is mixed, and receipts issued for the num¬ 
ber of bushels which are negotiable, and redeemable in like kind, 
upon demand. This mode of conducting the business was in¬ 
augurated more than twenty years ago, and has grown to immense 
proportions. The railways have found it impracticable to own 
such elevators, and public policy forbids the transaction of such 
business by the carrier; the ownership has, therefore, been by pri¬ 
vate individuals, who have embarked their capital and devoted 
their industry to such business as a private pursuit.” 

In this connection it must also be borne in mind that, although 
in 1874 there were in Chicago fourteen warehouses adapted to this 
particular business, and owned by about thirty persons, nine busi¬ 
ness firms controlled them, and that the prices charged and received 
for storage were such “as have been from year to year agreed upon 
and established by the different elevators or warehouses in the city 
of Chicago, and which rates have been annually published in one 
or more newspapers printed in said city, in the month of January 
in each year, as the established rates for the year then next ensuing 
such publication.” Thus it is apparent that all the elevating facili¬ 
ties through which these vast productions “of seven or eight great 
states of the West” must pass on the way “to four or five of the 
states on the sea-shore” may be a “virtual” monopoly. 

Under such circumstances it is difficult to see why, if the com¬ 
mon carrier, or the miller, or the ferryman, or the innkeeper, or the 
wharfinger, or the baker, or the cartman, or the hackney-coachman, 
pursues a public employment and exercises “a sort of public office,” 
these plaintiffs in error do not. They stand, to use again the lan¬ 
guage of their counsel, in the very “gateway of commerce,” and 
take toll from all who pass. Their business most certainly “tends 
to a common charge, and is become a thing of public interest and 
use.” Every bushel of grain for its passage “pays a toll, which is a 
common charge,” and, therefore, according to Lord Hale, every 
such warehouseman “ought to be under public regulation, viz , 


SCOPE AND LIMITS OF POWER 


241 


that he ♦ * ♦ take but reasonable toll/’ Certainly, if any 

business can be clothed “with a public interest and cease to be 
juris privati only,” this has been. It may not be made so by the 
operation of the Constitution of Illinois or this statute, but it is by 
the facts. * * * 

Neither is it a matter of any moment that no precedent can be 
found for a statute precisely like this. It is conceded that the busi¬ 
ness is one of recent origin, that its growth has been rapid, and 
that it is already of great importance. And it must also be con¬ 
ceded that it is a business in which the whole public has a direct 
and positive interest. It presents, therefore, a case for the applica¬ 
tion of a long-known and well-established principle in social sci¬ 
ence, and this statute simply extends the law so as to meet this 
new development of commercial progress. There is no attempt to 
compel these owners to grant the public an interest in their prop¬ 
erty, but to declare their obligations, if they use it in this particu¬ 
lar manner. 

It matters not in this case that these plaintiffs in error had built 
their warehouses and established their business before the regula¬ 
tions complained of were adopted. What they did was from the 
beginning subject to the power of the body politic to require them 
to conform to such regulations as might be established by the 
proper authorities for the common good. They entered upon their 
business and provided themselves with the means to carry it on 
subject to this condition. If they did not wish to submit them¬ 
selves to such interference, they should not have clothed the pub¬ 
lic with an interest in their concerns. The same principle applies 
to them that does to the proprietor of a hackney-carriage, and as 
to him it has never been supposed that he was exempt from regu¬ 
lating statutes or ordinances because he had purchased his horses 
and carriage and established his business before the statute or the 
ordinance was adopted. 

It is insisted, however, that the owner of property is entitled to 
a reasonable compensation for its use, even though it be clothed 
with a public interest, and that what is reasonable is a judicial and 
not a legislative question. 

As has already been shown, the practice has been otherwise. In 
countries where the common law prevails, it has been customary 
from time immemorial for the legislature to declare what shall be 
a reasonable compensation under such circumstances, or, perhaps 
more properly speaking, to fix a maximum beyond which any 
charge made would be unreasonable. Undoubtedly, in mere pri¬ 
vate contracts, relating to matters in which the public has no in¬ 
terest, what is reasonable must be ascertained judicially. But this 
is because the legislature has no control over such a contract. So, 
too, in matters which do affect the public interest, and as to which 
Hall Cases Const.L.—IG 


242 


THE POLICE POWER 


legislative control may be exercised, if there are no statutory regu¬ 
lations upon the subject, the courts must determine what is rea¬ 
sonable. The controlling fact is the power to regulate at all. If 
that exists, the right to establish the maximum of charge, as one 
of the means of regulation, is implied. In fact, the common-law 
rule, which requires the charge to be reasonable, is itself a regula¬ 
tion as to price. Without it the owner could make his rates at will, 
and compel the public to yield to his terms, or forego the use. 

But a mere common-law regulation of trade or business may be 
changed by statute. A person has no property, no vested interest, 
in any rule of the common law. That is only one of the forms of 
municipal law, and is no more sacred than any other. Rights of 
property which have been created by the common law cannot be 
taken away without due process; but the law itself, as a rule of 
conduct, may be changed at the will, or even at the whim, of the 
legislature, unless prevented by constitutional limitations. In¬ 
deed, the great office of statutes is to remedy defects in the com¬ 
mon law as they are developed, and to adapt it to the changes of 
time and circumstances. To limit the rate of charge for services 
rendered in a public employment, or for the use of property in 
which the public has an interest, is only changing a regulation 
which existed before. It establishes no new principle in the law, 
but only gives a new effect to an old one. 

We know that this is a power which may be abused; but that 
is no argument against its existence. For protection against 
abuses by legislatures the people must resort to the polls, not to 
the courts. * * 

Judgment affirmed. 

[Fikld, J., gave a dissenting opinion, in which Strong, J., con¬ 
curred.] 


SAN DIEGO LAND & TOWN CO. v. NATIONAL CITY 
(1899) 174 U. S. 739, 754-758, 19 Sup. Ct. 804, 43 L. Ed. 1154, Mr. 
Justice Harlan (upholding a municipal schedule of water rates) : 

“What elements are involved in the general inquiry as to the 
reasonableness of rates established by law for the use of property 
by the public? This question received much consideration in 
Smyth V. Ames [169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819]. 
That case, it is true, related to rates established by a statute of 
Nebraska for railroad companies doing business in that state. But 
the principles involved in such a case are applicable to the present 
case. It was there contended that a railroad company was entitled 
to exact such charges for transportation as would enable it at all 
times, not only to pay operating expenses, but to meet the interest 
regularly accruing upon all its outstanding obligations, and justify 



SCOPE AND LIMITS OF POWER 


243 


a dividend upon all its stock; and that to prohibit it from main¬ 
taining rates or charges for transportation adequate to all those 
ends would be a deprivation of property without due process of 
law, and a denial of the equal protection of the laws. After ob¬ 
serving that this broad proposition involved a misconception of 
the relations between the public and a railroad corporation, that 
such a corporation was created for public purposes, and performed 
a function of the state, and that its right to exercise the power of 
eminent domain, and to charge tolls, was given primarily for the 
benefit of the public, this court said; ‘It cannot, therefore, be ad¬ 
mitted that a railroad corporation maintaining a highway under 
the authority of the state may fix its rates with a view solely to 
its own interests, and ignore the rights of the public. But the 
rights of the public would be ignored if rates for the transporta¬ 
tion of persons or property on a railroad are exacted without ref¬ 
erence to the fair value of the property used for the public, or 
the fair value of the services rendered, but in order simply that 
the corporation may meet operating expenses, pay the interest on 
its obligations, and declare a dividend to stockholders. If a rail¬ 
road corporation has bonded its property for an amount that ex¬ 
ceeds its fair value, or if its capitalization is largely fictitious, it 
may not impose upon the public the burden of such increased rates 
as may be required for the purpose of realizing profits upon such 
excessive valuation or fictitious capitalization; and the apparent 
value of the property and franchises used by the corporation, as 
represented by its stocks, bonds, and obligations, is not alone to 
be considered when determining the rates that may be reasonably 
charged.^ 169 U. S. 544, 18 Sup. Ct. 433, 42 L. Ed. 819. In the 
same case it was also said that ‘the basis of all calculation as to the 
reasonableness of rates to be charged by a corporation maintain¬ 
ing a highway under legislative sanction must be the fair value of 
the property used by it for the convenience of the public. And, in 
order to ascertain that value, the original cost of construction, the 
amount expended in permanent improvements, the amount and 
market value of its bonds and stock, the present as compared with 
the original cost of construction, the probable earning capacity of 
the property under particular rates prescribed by statute, and the 
sum required to meet operating expenses, are all matters for con¬ 
sideration, and are to be given such weight as may be just and 
right in each case. We do not say that there may not be other 
matters to be regarded in estimating the value of the property. 
What the company is entitled to ask is a fair return upon the value 
of that which it employs for the public convenience. On the other 
hand, what the public is entitled to demand is that no more be ex¬ 
acted from it for the use of a public highway than the services 
rendered by it are reasonably worth.' 169 U. S. 546, 18 Sup. Ct. 
434, 42 L. Ed. 819. 


244 


THE POLICE POWER 


‘'This court had previously held in Road Co. v. Sandford, 164 U. 
S. 578, 596, 598, 17 Sup. Ct. 198, 41 L. Ed. 560, which case involved 
the reasonableness of rates established by legislative enactment 
for a turnpike company, that a corporation performing public serv¬ 
ices was not entitled, as of right, and without reference to the in¬ 
terests of the public, to realize a given per cent, upon its capital 
stock; that stockholders were not the only persons whose rights 
or interests were to be considered; and that the rights of the pub¬ 
lic were not to be ignored. The court in that case further said: 
‘Each case must depend upon its special facts; and when a court, 
without assuming itself to prescribe rates, is required to determine 
whether the rates prescribed by the legislature for a corporation 
controlling a public highway are, as an entirety, so unjust as to 
destroy the value of its property for all the purposes for which it 
was acquired, its duty is to take into consideration the interests 
both of the public and of the owner of the property, together with 
all other circumstances that are fairly to be considered in deter¬ 
mining whether the legislature has, under the guise of regulating 
rates, exceeded its constitutional authority, and practically de¬ 
prived the owner of property without due process of law. * * ^ 

The utmost that any corporation operating a public highway can 
rightfully demand at the hands of the legislature, when exerting 
its general powers, is that it receives what, under all the circum¬ 
stances, is such compensation for the use of its property as will 
be just, both to it and to the public.' 

“These principles are recognized in recent decisions of the su¬ 
preme court of California. San Diego Water Co. v. City of San 
Diego (1897) 118 Cal. 556, 50 Pac. 633, 38 L. R. A. 460, 62 Am. St. 
Rep. 261; Redlands L. & C. Domestic Water Co. v. City of Red¬ 
lands (1898) 121 Cal. 365, 53 Pac. 843, 844. 

“The contention of the appellant in the present case is that in 
ascertaining what are just rates the court should take into con¬ 
sideration the cost of its plant; the cost per annum of operating 
the plant, including interest paid on money borrowed, and rea¬ 
sonably necessary to be used in constructing the same; the annual 
depreciation of the plant from natural causes resulting from its 
use; and a fair profit to the company over and above such charges 
for its services in supplying the water to consumers, either by way 
of interest on the money it has expended for the public use, or up¬ 
on some other fair and equitable basis. Undoubtedly all these 
matters ought to be taken into consideration, and such weight be 
given them, when rates are being fixed, as, under all the circum¬ 
stances, will be just to the company and to the public. The basis 
of calculation suggested by the appellant is, however, defective in 
not requiring the real value of the property and the fair value in 
themselves of the services rendered to be taken into consideration. 
What the company is entitled to demand, in order that it may have 


SCOPE AND LIMITS OF POWER 


245 


just compensation, is a fair return upon the reasonable value of the 
property at the time it is being used for the public. The property 
may have cost more than it ought to have cost, and its outstand¬ 
ing bonds for money borrowed and which went into the plant may 
be in excess of the real value of the property. So that it cannot be 
said that the amount of such bonds should in every case control 
the question of rates, although it may be an element in the inquiry 
as to what is, all the circumstances considered, just, both to the 
company and to the public.” 


LOCHNER V. NEW YORK. 

(Supreme Court of United States, 1905. 198 U. S. 45, 25 Sup. Ct. 539, 49 L. 

Ed. 937, 3 Ann. Cas. 1133.) 

[Error to the county court of Oneida county. New York. A 
New York statute forbade any employe in a bakery or confection¬ 
ery establishment to be permitted to work over 60 hours in any 
one week, or an average of over 10 hours a day for the number of 
days such employes should work. Lochner was convicted in said 
county court of violating this statute in the city of Utica, and the 
conviction was affirmed on appeal by the Appellate Division and by 
the Court of Appeals of the state, which remanded the case to 
the original court for further proceedings.] 

Mr. Justice Peckham. ^ ^ q'he statute necessarily inter¬ 

feres with the right of contract between the employer and em¬ 
ployes, concerning the number of hours in which the latter may 
labor in the bakery of the employer. The general right to make a 
contract in relation to his business is part of the liberty of the in¬ 
dividual protected by the fourteenth amendment of the federal 
Constitution. Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 
427, 41 L. Ed. 832. Under that provision no state can deprive any 
person of life, liberty, or property without due process of law. 
The right to purchase or to sell labor is part of the liberty pro¬ 
tected by this amendment, unless there are circumstances which 
exclude the right. There are, however, certain powers, existing 
in the sovereignty of each state in the Union, somewhat vaguely 
termed police powers, the exact description and limitation of which 
have not been attempted by the courts. Those powers, broadly 
stated, and without, at present, any attempt at a more specific lim¬ 
itation, relate to the safety, health, morals, and general welfare of 
the public. Both property and liberty are held on such reasonable 
conditions as may be imposed by the governing power of the state 
in the exercise of those powers, and with such conditions the 
fourteenth amendment was not designed to interfere. Mugler v. 
Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Re Kemmler, 
136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519; Crowley v. Christen- 



246 


THE POLICE POWER 


sen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; Re Converse, 137 
U. S. 624, 11 Sup. Ct. 191, 34 L. Ed. 796. 

The state, therefore, has power to prevent the individual from 
making certain kinds of contracts, and in regard to them the feder¬ 
al Constitution offers no protection. If the contract be one which 
the state, in the legitimate exercise of its police power, has the 
right to prohibit, it is not prevented from prohibiting it by the 
fourteenth amendment. Contracts in violation of a statute, either 
of the federal or state government, or a contract to let one’s prop¬ 
erty for immoral purposes, or to do any other unlawful act, could 
obtain no protection from the federal Constitution, as coming un¬ 
der the liberty of person or of free contract. Therefore, when the 
state, by its legislature, in the assumed exercise of its police pow¬ 
ers, has passed an act which seriously limits the right to labor or 
the right of contract in regard to their means of livelihood between 
persons who are sui juris (both employer and employe), it be¬ 
comes of great importance to determine which shall prevail,—the 
right of the individual to labor for such time as he may choose, or 
the right of the state to prevent the individual from laboring, or 
from entering into any contract to labor, beyond a certain time 
prescribed by the state. 

This court has recognized the existence and upheld the exercise 
of the police powers of the states in many cases which might fairly 
be considered as border ones, and it has, in the course of its deter¬ 
mination of questions regarding the asserted invalidity of such 
statutes, on the ground of their violation of the rights secured by 
the federal Constitution, been guided by rules of a very liberal, na¬ 
ture, the application of which has resulted, in numerous instances, 
in upholding the validity of state statutes thus assailed. Among 
the later cases where the state law has been upheld by this court 
is that of Holden v. Hardy, 169 U. S. 366, 42 L. Ed. 780, 18 Sup. 
Ct. 383. A provision in the act of the legislature of Utah was there 
under consideration, the act limiting the employment of workmen 
in all underground mines or workings, to eight hours per day, "‘ex- 
cept in cases of emergency, where life or property is in imminent 
danger.” It also limited the hours of labor in smelting and other 
institutions for the reduction or refining of ores or metals to eight 
hours per day, except in like cases of emergency. The act was held 
to be a valid exercise of the police powers of the state. A review 
of many of the cases on the subject, decided by this and other 
courts, is given in the opinion. It was held that the kind of em¬ 
ployment, mining, smelting, etc., and the character of the employes 
in such kinds of labor, were such as to make it reasonable and 
proper for the state to interfere to prevent the employes from be¬ 
ing constrained by the rules laid down by the proprietors in re¬ 
gard to labor. The following citation from the observations of the 
supreme court of Utah in that case was made by the judge writing 


SCOPE AND LIMITS OP POWER 


247 


the opinion of this court, and approved: ‘‘The law in question is 
confined to the protection of that class of people engaged in labor 
in underground mines, and in smelters and other works wherein 
ores are reduced and refined. This law applies only to the classes 
subjected by their employment to the peculiar conditions and ef¬ 
fects attending underground mining and work in smelters, and 
other works for the reduction and refining of ores. Therefore it is 
not necessary to discuss or decide whether the legislature can fix 
the hours of labor in other employments.” 

It will be observed that, even with regard to that class of labor, 
the Utah statute provided for cases of emergency wherein the 
provisions of the statute would not apply. The statute now before 
this court has no emergency clause in it, and, if the statute is valid, 
there are no circumstances and no emergencies under which the 
slightest violation of the provisions of the act would be innocent. 
There is nothing in Holden v. Hardy which covers the case now 
before us. Nor does Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 
124, 48 L. Ed. 148, touch the case at bar. The Atkin Case was de¬ 
cided upon the right of the state to control its municipal cor¬ 
porations, and to prescribe the conditions upon which it will per¬ 
mit work of a public character to be done for a municipality. 
Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1, 46 L. 
Ed. 55, is equally far from an authority for this legislation. The 
employes in that case were held to be at a disadvantage with the 
employer in matters of wages, they being miners and coal workers, 
and the act simply provided for the cashing of coal orders when 
presented by the miner to the employer. * * hj [Jacobson v. 

Massachusetts, ante, p. 218, and Petit v. Minnesota, 177 U. S. 164, 
20 Sup. Ct. 666, 44 L. Ed. 716, are here stated.] 

It must, of course, be conceded that there is a limit to the valid 
exercise of the police power by the state. There is no dispute con¬ 
cerning this general proposition. Otherwise the fourteenth amend¬ 
ment would have no efficacy and the legislatures of the states 
would have unbounded power, and it would be enough to say that 
any piece of legislation was enacted to conserve the morals, the 
health, or the safety of the people; such legislation would be valid, 
no matter how absolutely without foundation the claim might be. 
The claim of the police power would be a mere pretext,—become 
another and delusive name for the supreme sovereignty of the state 
to be exercised free from constitutional restraint. This is not con¬ 
tended for. In every case that comes before this court, therefore, 
where legislation of this character is concerned, and where the 
protection of the federal Constitution is sought, the question neces¬ 
sarily arises: Is this a fair, reasonable, and appropriate exercise 
of the police power of the state, or is it an unreasonable, unneces¬ 
sary, and arbitrary interference with the right of the individual to 
his personal liberty, or to enter into those contracts in relation to 


248 


THE POLICE POWER 


labor which may seem to him appropriate or necesary for the sup¬ 
port of himself and his family? Of course the liberty of contract 
relating to labor includes both parties to it. The one has as much 
right to purchase as the other to sell labor. 

This is not a question of substituting the judgment of the court 
for that of the legislature. If the act be within the power of the 
state it is valid, although the judgment of the court might be total¬ 
ly opposed to the enactment of such a law. But the question 
would still remain: Is it within the police power of the state? and 
that question must be answered by the court. 

The question whether this act is valid as a labor law, pure and 
simple, may be dismissed in a few words. There is no reasonable 
ground for interfering with the liberty of person or the right of 
free contract, by determining the hours of labor, in the occupation 
of a baker. There is no contention that bakers as a class are not 
equal in intelligence and capacity to men in other trades or manual 
occupations, or that they are not able to assert their rights and 
care for themselves without the protecting arm of the state, inter¬ 
fering with their independence of judgment and of action. They 
are in no sense wards of the state. Viewed in the light of a purely 
labor law, with no reference whatever to the question of health, 
we think that a law like the one before us involves neither the safe¬ 
ty, the morals, nor the welfare, of the public, and that the interest 
of the public is not in the slightest degree affected by such an act. 
The law must be upheld, if at all, as a law pertaining to the health 
of the individual engaged in the occupation of a baker. It does 
not affect any other portion of the public than those who are en¬ 
gaged in that occupation. Clean and wholesome bread does not 
depend upon whether the baker works but ten hours per day or 
only sixty hours a week. The limitation of the hours of labor does 
not come within the police power on that ground. 

It is a question of which of two powers or rights shall prevail,— 
the power of the state to legislate or the right of the individual to 
liberty of person and freedom of contract. The mere assertion that 
the subject relates, though but in a remote degree, to the public 
health, does not necessarily render the enactment valid. The act 
must have a more direct relation, as a means to an end, and the 
end itself must be appropriate and legitimate, before an act can be 
held to be valid which interferes with the general right of an in¬ 
dividual to be free in his person and in his power to contract in re¬ 
lation to his own labor. * * ^ 

We think the limit of the police power has been reached and 
passed in this case. There is, in our judgment, no reasonable foun¬ 
dation for holding this to be necessary or appropriate as a health 
law to safeguard the public health, or the health of the individuals 
who are following the trade of a baker. If this statute be valid, 
and if, therefore, a proper case is made out in which to deny the 


SCOPE AND LIMITS OF POWER 


249 


right of an individual, sui juris, as employer or employe, to make 
contracts for the labor of the latter under the protection of the 
provisions of the federal Constitution, there would seem to be no 
length to which legislation of this nature might not go. The case 
differs widely, as we have already stated, from the expressions of 
this court in regard to laws of this nature, as stated in Holden v. 
Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, and Jacobson 
V. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 
Ann. Cas. 765. 

We think that there can be no fair doubt that the trade of a 
baker, in and of itself, is not an unhealthy one to that degree which 
would authorize the legislature to interfere with the right to labor, 
and with the right of free contract on the part of the individual, 
either as employer or employe. In looking through statistics re¬ 
garding all trades and occupations, it may be true that the trade of 
a baker does not appear to be as healthy as some other trades, and 
is also vastly more healthy than still others. To the common under¬ 
standing the trade of a baker has never been regarded as an un¬ 
healthy one. Very likely physicians would not recommend the ex¬ 
ercise of that or of any other trade as a remedy for ill health. 
Some occupations are more healthy than others, but we think there 
are none which might not come under the power of the legislature 
to supervise and control the hours of working therein, if the mere 
fact that the occupation is not absolutely and perfectly healthy is 
to confer that right upon the legislative department of the govern¬ 
ment. It might be safely affirmed that almost all occupations more 
or less affect the health. There must be more than the mere fact 
of the possible existence of some small amount of unhealthiness to 
warrant legislative interference with liberty. It is unfortunately 
true that labor, even in any department, may possibly carry with 
it the seeds of unhealthiness. But are we all, on that account, at 
the mercy of legislative majorities? A printer, a tinsmith, a lock¬ 
smith, a carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a 
lawyer’s, or a physician’s clerk, or a clerk in almost any kind of 
business, would all come under the power of the legislature, on this 
assumption. No trade, no occupation, no mode of earning one’s 
living, could escape this all-pervading power, and the acts of the 
legislature in limiting the hours of labor in all employments would 
be valid, although such limitation might seriously cripple the ability 
of the laborer to support himself and his family. 

In our large cities there are many buildings into which the sun 
penetrates for but a short time in each day, and these buildings are 
occupied by people carrying on the business of bankers, brokers, 
lawyers, real estate, and many other kinds of business, aided by 
many clerks, messengers, and other employes. Upon the assump¬ 
tion of the validity of this act under review, it is not possible to 
say that an act, prohibiting lawyers’ or bank clerks, or others. 


250 


THE POLICE POWER 


from contracting to labor for their employers more than eight 
hours a day would be invalid. It might be said that it is unhealthy 
to work more than that number of hours in an apartment lighted 
by artificial light during the working hours of the day; that the 
occupation of the bank clerk, the lawyer’s clerk, the real-estate 
clerk, or the broker’s clerk, in such offices is therefore unhealthy, 
and the legislature, in its paternal wisdom, must, therefore, have the 
right to legislate on the subject of, and to limit, the hours for such 
labor; and, if it exercises that power, and its validity be question¬ 
ed, it is sufficient to say, it has reference to the public health; it 
has reference to the health of the employes condemned to labor 
day after day in buildings where the sun never shines; it is a 
health law, and therefore it is valid, and cannot be questioned by 
the courts. 

It is also urged, pursuing the same line of argument, that it is to 
the interest of the state that its population should be strong and 
robust, and therefore any legislation which may be said to tend to 
make people healthy must be valid as health laws, enacted under 
the police power. If this be a valid argument and a justification 
for this kind of legislation, it follows that the protection of the 
federal Constitution from undue interference with liberty of person 
and freedom of contract is visionary, wherever the law is sought to 
be justified as a valid exercise of the police power. Scarcely any 
law but might find shelter under such assumptions, and conduct, 
properly so called, as well as contract, would come under the restric¬ 
tive sway of the legislature. Not only the hours of employes, but 
the hours of employers, could be regulated, and doctors, lawyers, 
scientists, all professional men, as well as athletes and artisans, 
could be forbidden to fatigue their brains and bodies by prolonged 
hours of exercise, lest the fighting strength of the state be impaired. 
We mention these extreme cases because the contention is extreme. 

We do not believe in the soundness of the views which uphold 
this law. On the contrary, we think that such a law as this, al¬ 
though passed in the assumed exercise of the police power, and as 
relating to the public health, or the health of the employes named, 
is not within that power, and is invalid. The act is not, within any 
fair meaning of the term, a health law, but is an illegal interference 
with the rights of individuals, both employers and employes, to 
make contracts regarding labor upon such terms as they may think’ 
best, or which they may agree upon with the other parties to such 
contracts. Statutes of the nature of that under review, limiting 
the hours in which grown and intelligent men may labor to earn 
their living, are mere meddlesome interferences with the rights of 
the individual, and they are not saved from condemnation by the 
claim that they are passed in the exercise of the police power and 
upon the subject of the health of the individual whose rights are 
interfered with, unless there be some fair ground, reasonable in 


SCOPE AND LIMITS OP POWER 


251 


and of itself, to say that there is material danger to the public 
health, or to the health of the employes, if the hours of labor are 
not curtailed. ^ * 

It was further urged on the argument that restricting the hours 
of labor in the case of bakers was valid because it tended to 
cleanliness on the part of the workers, as a man was more apt to 
be cleanly when not overworked, and if cleanly then his “output” 
was also more likely to be so. ^ * The connection, if any 

exist, is too shadowy and thin to build any argument for the inter¬ 
ference of the legislature. If the man works ten hours a day it is 
all right, but if ten and a half or eleven his health is in danger and 
his bread may be unhealthful, and, therefore, he shall not be per¬ 
mitted to do it. This, we think, is unreasonable and entirely arbi¬ 
trary. * * * h seems to us that the real object and purpose 
were simply to regulate the hours of labor between the master and 
his employes (all being men, sui juris), in a private business, not 
dangerous in any degree to morals, or in any real and substantial 
degree to the health of the employes. Under such circumstances 
the freedom of master and employe to contract with each other in 
relation to their employment, and in defining the same, cannot be 
prohibited or interfered with, without violating the federal Con¬ 
stitution. * 5ft * 

Judgment reversed. 

Mr. Justice Harlan [with whom concurred White: and Day, 
JJ.] dissenting: ^ ^ ^ impossible, in view of common 

experience, to say that there is here no real or substantial relation 
between the means employed by the state and the end sought to 
be accomplished by its legislation. ^ ^ ^ 

We judicially know that the question of the number of hours 
during which a workman should continuously labor has been, for 
a long period, and is yet, a subject of serious consideration among 
civilized peoples, and by those having special knowledge of the 
laws of health. Suppose the statute prohibited labor in bakery 
and confectionery establishments in excess of eighteen hours each 
day. No one, I take it, could dispute the power of the state to en¬ 
act such a statute. But the statute before us does not embrace ex¬ 
treme or exceptional cases. It may be said to occupy a middle 
ground in respect of the hours of labor. What is the true ground 
for the state to take between legitimate protection, by legislation, 
of the public health and liberty of contract is not a question easily 
solved, nor one in respect of which there is or can be absolute cer¬ 
tainty. There are very few, if any, questions in political economy 
about which entire certainty may be predicated. ^ ^ ^ 

I do not stop to consider whether any particular view of this 
economic question presents the sounder theory. What the precise 
facts are it may be difficult to say. It is enough for the determina¬ 
tion of this case, and it is enough for this court to know, that the 


252 


THE POLICE POWER 


question is one about which there is room for debate and for an 
honest difference of opinion. There are many reasons of a weigh¬ 
ty, substantial character, based upon the experience of mankind, 
in support of the theory that, all things considered, more than ten 
hours steady work each day, from week to week, in a bakery or 
confectionery establishment, may endanger the health and shorten 
the lives of the workmen, thereby diminishing their physical and 
mental capacity to serve the state and to provide for those depend¬ 
ent upon them. 

If such reasons exist that ought to be the end of this case, for 
the state is not amenable to the judiciary, in respect of its legisla¬ 
tive enactments, unless such enactments are plainly, palpably, be¬ 
yond all question, inconsistent with the Constitution of the United 
States. * * * 

Mr. Justice Holme^s dissenting: I regret sincerely that I am un¬ 
able to agree with the judgment in this case, and that I think it 
my duty to express my dissent. 

This case is decided upon an economic theory which a large part 
of the country does not entertain. If it were a question whether I 
agreed with that theory, I should desire to study it further and 
long before making up my mind. But I do not conceive that to be 
my duty, because I strongly believe that my agreement or dis¬ 
agreement has nothing to do with the right of a majority to em¬ 
body their opinions in law. It is settled by various decisions of 
this court that state Constitutions and state laws may regulate life 
in many ways which we as legislators might think as injudicious, 
or if you like as tyrannical, as this, and which, equally with this, 
interfere with the liberty to contract. Sunday laws and usury laws 
are ancient examples. A more modern one is the prohibition of 
lotteries. The liberty of the citizen to do as he likes so long as he 
does not interfere with the liberty of others to do the same, which 
has been a shibboleth for some well-known writers, is interfered 
with by school laws, by the postoffice, by every state or municipal 
institution which takes his money for purposes thought desirable, 
whether he likes it or not. 

The fourteenth amendment does not enact Mr. Herbert Spencer's 
Social Statics. The other day we sustained the Massachusetts vac¬ 
cination law. Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 
358, 49 L. Ed. 643, 3 Ann. Cas. 765. United States and state stat¬ 
utes and decisions cutting down the^iberty to contract by way of 
combination are familiar to this court. Northern Securities Co. v. 
United States, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679. Two 
years ago we upheld the prohibition of sales of stock on margins, 
or for future delivery, in the Constitution of California. Otis v. 
Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 E. Ed. 323. The decision 
sustaining an eight-hour law for miners is still recent. Holden v. 
Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 E. Ed. 780. Some of these 


SCOPE AND LIMITS OF POWER 


253 


laws embody convictions or prejudices which judges are likely to 
share. Some may not. But a Constitution is not intended to em¬ 
body a particular economic theory, whether of paternalism and the 
organic relation of the citizen to the state or of laissez faire. It 
is made for people of fundamentally differing views, and the acci¬ 
dent of our finding certain opinions natural and familiar, or novel, 
and even shocking, ought not to conclude our judgment upon the 
question whether statutes embodying*them conflict with the Con¬ 
stitution of the United States. 

General propositions do not decide concrete cases. The decision 
will depend on a judgment or intuition more subtle than any ar¬ 
ticulate major premise. But I think that the proposition just 
stated, if it is accepted, will carry us far toward the end. Every 
opinion tends to become a law. I think that the word “liberty,” 
in the fourteenth amendment, is perverted when it is held to pre¬ 
vent the natural outcome of a dominant opinion, unless it can be 
said that a rational and fair man necessarily would admit that the 
statute proposed would infringe fundamental principles as they 
have been understood by the traditions of our people and our law. 
It does not need research to show that no such sweeping condemna¬ 
tion can be passed upon the statute before us. A reasonable man 
might think it a proper measure on the score of health. Men 
whom I certainly could not pronounce unreasonable would uphold 
it as a first instalment of a general regulation of the hours of work. 
Whether in the latter aspect it would be open to the charge of 
inequality I think it unnecessary to discuss. 


McLEAN V. ARKANSAS. 

(Supreme Court of United States, 1909. 211 U. S. 539, 29 Sup. Ct. 206, 53 

L. Ed. 315.) 

[Error to the Supreme Court of Arkansas. A statute criminally 
forbade the operator of any coal mine employing at least ten men 
underground, whose miners were paid at quantity rates, from 
using screens or other devices to reduce the amount of wages that 
would be due on the basis of the weight of coal actually mined and 
accepted by the operator. A state Circuit Court convicted Mc¬ 
Lean, an agent of such a coal company, for violating this statute, 
and the state Supreme Court affirmed this.] 

Mr. Justice Day. * * * That the Constitution of the United 
States, in the fourteenth amendment thereof, protects the right to 
make contracts for the sale of labor, and the right to carry on trade 
or business, against hostile state legislation, has been affirmed in 
decisions of this court, and we have no disposition to question 
those cases in which the right has been upheld and maintained 
against such legislation. Allgeyer v. Louisiana, 165 U. S. 578, 17 



254 


THE POLICE POWER 


Sup. Ct. 427, 41 L. Ed. 832; Adair v. United States, 208 U. S. 161, 
28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764. But, in many 
cases in this court, the right of freedom of contract has been held 
not to be unlimited in its nature, and when the right to contract or 
carry on business conflicts with laws declaring the public policy 
of the state, enacted for the protection of the public health, safety, 
or welfare, the same may be valid, notwithstanding they have the 
effect to curtail or limit the freedom of contract. * * * 

In Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1, 46 
E. Ed. 55, it was held that an act of the legislature of Tennessee, 
requiring the redemption in cash of store orders or other evidences 
of indebtedness issued by employers in payment of wages due to 
employes, did not conflict with any provisions of the Constitution 
of the United States, protecting the right of contract. In Frisbie 
V. United States, 157 U. S. 160, 15 Sup. Ct. 586, 39 L. Ed. 657, the 
act of Congress prohibiting attorneys from contracting for a larger 
fee than $10 for prosecuting 'pension claims was held to be a valid 
exercise of police power. * * * Patterson v. The Eudora, 

190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002, this court held that 
an act of Congress making it a misdemeanor for a shipmaster to 
pay a sailor any part of his wages in advance was valid. * * * 

The legislature, being familiar with local conditions, is, primari¬ 
ly, the judge of the necessity of such enactments. The mere fact 
that a court may differ with the legislature in its views of public 
policy, or that judges may hold views inconsistent with the pro¬ 
priety of the legislation in question, affords no ground for judicial 
interference, unless the act in question is unmistakably and pal¬ 
pably in excess of legislative power. * * * This law does not 

prevent the operator from screening the coal before it is sent to 
market; it does not prevent a contract for mining coal by the day, 
week, or month; it does not prevent the operator from rejecting 
coal improperly or negligently mined, and shown to be unduly 
mingled with dirt or refuse. The objection upon the ground of 
interference with the right of contract rests upon the inhibition 
of contracts which prevent the miner employed at quantity rates 
from contracting for wages upon the basis of screened coal in¬ 
stead of the weight of the coal as originally produced in the mine. 

If there existed a condition of affairs concerning which the legis¬ 
lature of the state, exercising its conceded right to enact laws for 
the protection of the health, safety, or welfare of the people, might 
pass the law, it must be sustained; if such action was arbitrary 
interference with the right to contract or carry on business, and 
having no just relation to the protection of the public within the 
scope of legislative power, the act must fail. * * * [Here are 
mentioned Ramsey v. People, 142 Ill. 380, 32 N. E. 364, 17 L. R. 
A. 853, and In re House Bill No. 203, 21 Colo. 27, 39 Pac. 431, hold¬ 
ing such legislation invalid, and State v. Peel Splint Coal Co., 36 


SCOPE AND LIMITS OF POWER 


255 


W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385, maintaining it by a 
divided court.] 

Conditions which may have led to such legislation were the sub¬ 
ject of very full investigation by the industrial commission author¬ 
ized by Congress by the act of June 18, 1898. * * * ^ number 

of the witnesses expressed opinions, based upon their experience 
in the mining industry, that disputes concerning the introduction 
and use of screens had led to frequent and sometimes heated con¬ 
troversies between the operators and the miners. This condition 
was testified to have been the result, not only of the introduction 
of screens as a basis of paying the miners for screened coal only, 
but, after the screens had been introduced, differences had arisen 
because of the disarrangement of the parts of the screen, resulting 
in weakening it, or in increasing the size of the meshes through 
which the coal passed, thereby preventing a correct measurement 
of the coal as the basis of paying the miner's wages. 

We are unable to say, in the light of the conditions shown in the 
public inquiry referred to, and in the necessity for such laws, 
evinced in the enactments of the legislatures of various states, 
that this law had no reasonable relation to the protection of a 
large class of laborers in the receipt of their just dues and in the 
promotion of the harmonious relations of capital and labor en¬ 
gaged in a great industry in the state. 

Taws tending to prevent fraud and to require honest weights 
and measures in the transaction of business have frequently been 
sustained in the courts, although, in compelling certain modes of 
dealing, they interfere with the freedom of. contract. Many cases 
are collected in Mr. Freund’s book on “Police Power” (section 
274), wherein that author refers to laws which have been sustain¬ 
ed, regulating the size of loaves of bread when sold in the market; 
requiring the sale of coal in quantities of 500 pounds or more, by 
weight; that milk shall be sold in wine measure, and kindred en¬ 
actments. 

Upon this branch of the case it is argued for the validity of this 
law that its tendency is to require the miner to be honestly paid 
for the coal actually mined and sold. It is insisted that the miner 
is deprived of a portion of his just due when paid upon the basis 
of screened coal, because, while the price may be higher, and 
theoretically he may be compensated for all the coal mined in the 
price paid him for screened coal, that practically, owing to the 
manner of the operation of the screen itself, and its different op¬ 
eration when differently adjusted, or when out of order, the miner 
is deprived of payment for the coal which he has actually mined. 
It is not denied that the coal which passes through the screen is 
sold in the market. It is not for us to say whether these are actual 
conditions. It is sufficient to say that it was a situation brought 
to the attention of the legislature, concerning which it was entitled 


256 


THE POLICE POWER 


to judge and act for itself in the exercise of its lawful power to 
pass remedial legislation. * * * 

Judgment affirmed. 

[BrEwe;r and Peckham, JJ., dissented.] 


ADAIR V. UNITED STATES. 

(Supreme Court of United States, 1908. 208 U. S. 161, 28 Sup. Ct. 277, 52 
L. Ed. 436, 13 Ann. Gas. 764.) 

[Error to the federal District Court for the Eastern District of 
Kentucky. An act of Congress (Act June 1, 1898, c. 370) provided 
for the arbitration of disputes between interstate railroad carriers 
and their employes, and by section 10 made it a misdemeanor for 
such carriers or their agents to “threaten any employe with loss of 
employment,'' or “unjustly [to] discriminate against any employe 
because of his membership in [any] labor corporation, association, 
or organization." Adair was indicted for violating this section, in 
that, as agent for an interstate railroad, he discharged one Coppage 
because of his membership in a labor union. The trial court over¬ 
ruled a demurrer to the indictment, and this writ of error was 
taken.] 

Mr. Justice Harlan. * ♦ ♦ The first inquiry is whether the 

part of the tenth section of the act of 1898 upon which the first 
count of the indictment was based is repugnant to the fifth amend¬ 
ment of the Constitution, declaring that no person shall be de¬ 
prived of liberty or property without due process of law. In our 
opinion that section, in the particular mentioned, is an invasion of 
the personal liberty, as well as of the right of property, guaranteed 
by that amendment. Such liberty and right embrace the right to 
make contracts for the purchase of the labor of others, and equally 
the right to make contracts for the sale of one's own labor; each 
right, however, being subject to the fundamental condition that 
no contract, whatever its subject-matter, can be sustained which 
the law, upon reasonable grounds, forbids as inconsistent with the 
public interests, or as hurtful to the public order, or as detrimental 
to the common good. * * * 

It was the right of the defendant to prescribe the terms upon 
which the services of Coppage would be accepted, and it was the 
right of Coppage to become or not, as he chose, an employe of 
the railroad company upon the terms offered to him. Mr. Cooley, 
in his treatise on Torts, p. 278, well says: “It is a part of every 
man's civil rights that he be left at liberty to refuse business rela¬ 
tions with any person whomsoever, whether the refusal rests up¬ 
on reason, or is the result of whim, caprice, prejudice, or malice. 
With his reasons neither the public nor third persons have any 



SCOPE AND LIMITS OF POWER 


257 


leg-al concern. It is also his right to have business relations with 
anyone with whom he can make contracts, and, if he is wrongfully 
deprived of this right by others, he is entitled to redress.’^ ♦ sjc * 
[IvOchner v. New York, ante, p. 245, is here discussed.] 

While, as already suggested, the right of liberty and property 
guaranteed by the Constitution against deprivation without due 
process of law is subject to such reasonable restraints as the com¬ 
mon good or the general welfare may require, it is not within the 
functions of government—at least, in the absence of contract be¬ 
tween the parties—to compel any person, in the course of his busi¬ 
ness and against his will, to accept or retain the personal services 
of another, or to compel any person, against his will, to perform 
personal services for another. The right of a person to sell his 
labor upon such terms as he deems proper is, in its essence, the 
same as the right of the purchaser of labor to prescribe the condi¬ 
tions upon which he will accept such labor from the person offer¬ 
ing to sell it. So the right of the employe to quit the service of 
the employer, for whatever reason, is the same as the right of the 
employer, for whatever reason, to dispense with the services of 
such employe. It was the legal right of the defendant, Adair,— 
however unwise such a course might have been,—to discharge 
Coppage because of his being a member of a labor organization, as 
it was the legal right of Coppage, if he saw fit to do so,—however 
unwise such a course on his part might have been,—to quit the 
service in which he was engaged, because the defendant employed 
some persons who were not members of a labor organization. In 
all such particulars the employer and the employe have equality of 
right, and any legislation that disturbs that equality is an arbitrary 
interference with the liberty of contract which no government can 
legally justify in a free land. 

These views find support in adjudged cases, some of which are 
cited in the margin. [Citations omitted.] Of course, if the parties 
by contract fixed the period of service, and prescribed the condi¬ 
tions upon which the contract may be terminated, such contract 
would control the rights of the parties as between themselves, and 
for any violation of those provisions the party wronged would 
have his appropriate civil action. And it may be—but upon that 
point we express no opinion—that, in the case of a labor contract 
between an employer engaged in interstate commerce and his 
employe. Congress could make it a crime for either party, without 
sufficient or just excuse or notice, to disregard the terms of such 
contract or to refuse to perform it. In the absence, however, of a 
valid contract between the parties controlling their conduct to¬ 
wards each other and fixing a period of service, it cannot be, we 
repeat, that an employer is under any legal obligation, against his 
will, to retain an employe in his personal service any more than 
Hall Cases Const.L.— 17 


258 


THE POLICE POWER 


an employe can be compelled, against his will, to remain in the 
personal service of another. * * * 

Judgment reversed. 

Mr. Justice McKenna, dissenting. ^ ^ * The provisions of 

the act are explicit and present a well co-ordinated plan for the set¬ 
tlement of disputes between carriers and their employes, by bring¬ 
ing the disputes to arbitration and accommodation, and thereby 
prevent strikes and the public disorder and derangement of busi¬ 
ness that may be consequent upon them. ^ ^ 

We are told that labor associations are to be commended. May 
not, then, Congress recognize their existence? Yes, and recognize 
their power as conditions to be counted with in framing its legis¬ 
lation. Of what use would it be to attempt to bring bodies of 
men to agreement and compromise of controversies if you put out 
of view the influences which move them or the fellowship which 
binds them,—maybe controls and impels them, whether rightfully 
or wrongfully, to make the cause of one the cause of all? And 
this practical wisdom Congress observed,—observed, I may say, 
not in speculation or uncertain prevision of evils, but in experience 
of evils,—an experience which approached to the dimensions of a 
national calamity. The facts of history should not be overlooked 
nor the course of legislation. The act involved in the present case 
was preceded by one enacted in 1888 of similar purport. 25 Stat. 
at Large, 501, c. 1063. That act did not recognize labor associa¬ 
tions, or distinguish between the members of such associations and 
the other employes of carriers. It failed in its purpose, whether 
from defect in its provisions or other cause we may only conjec¬ 
ture. At any rate, it did not avert the strike at Chicago in 1894. 
Investigation followed, and, as a result of it, the act of 1898 was 
finally passed. Presumably its provisions and remedy were ad¬ 
dressed to the mischief which the act of 1888 failed to reach or 
avert. 

It was the judgment of Congress that the scheme of arbitration 
might be helped by engaging in it the labor associations. Those 
associations unified bodies of employes in every department of the 
carriers, and this unity could be an obstacle or an aid to arbitra¬ 
tion. It was attempted to be made an aid; but how could it be 
made an aid if, pending the efforts of “mediation and conciliation^^ 
of the dispute, as provided in section 2 of the act, other provisions 
of the act may be arbitrarily disregarded, which are of concern to 
the members in the dispute? How can it be an aid, how can con¬ 
troversies which may seriously interrupt or threaten to interrupt 
the business of carriers (I paraphrase the words of the statute) be 
averted or composed if the carrier can bring on the conflict or pre¬ 
vent its amicable settlement by the exercise of mere whim and 
caprice? I say mere whim or caprice, for this is the liberty which 


SCOPE AND LIMITS OF POWER 


259 


is attempted to be vindicated as the constitutional right of the car¬ 
riers. And it may be exercised in mere whim and caprice. If 
ability, the qualities of efficient and faithful workmanship, can be 
found outside of labor associations, surely they may be found in¬ 
side of them. Liberty is an attractive theme, but the liberty which 
is exercised in sheer antipathy does not plead strongly for recogni¬ 
tion. * * * 

It also seems to me to be an oversight of the proportions of 
things to contend that, in order to encourage a policy of arbitra¬ 
tion between carriers and their employes which may prevent a dis¬ 
astrous interruption of commerce, the derangement of business, 
and even greater evils to the public welfare. Congress cannot re¬ 
strain the discharge of an employe, and yet can, to enforce a policy 
of unrestrained competition between railroads, prohibit reasonable 
agreements between them as to the rates at which merchandise 
shall be carried. And mark the contrast of what is prohibited. In 
the one case the restraint, it may be, of a wffiim,—certainly of noth¬ 
ing that affects the ability of an employe to perform his duties; 
nothing, therefore, which is of any material interest to the car¬ 
rier,—in the other case, a restraint of a carefully-considered policy 
which had as its motive great material interests and benefits to 
the railroads, and, in the opinion of many, to the public. May 
such action be restricted, must it give way to the public welfare, 
while the other, moved, it may be, by prejudice and antagonism, 
is intrenched impregnably in the fifth amendment of the Constitu¬ 
tion against regulation in the public interest? 

I would not be misunderstood. I grant that there are rights 
which can have no material measure. There are rights which, 
when exercised in a private business, may not be disturbed or lim¬ 
ited. With them we are not concerned. We are dealing with 
rights exercised in a quasi public business, and therefore subject 
to control in the interest of the public. 

Mr. Justice Holme^s, dissenting. ♦ ♦ ★ ground on which 

this particular law is held bad is not so much that it deals with 
matters remote from commerce among the states, as that it inter¬ 
feres with the paramount individual rights secured by the fifth 
amendment. The section is, in substance, a very limited inter¬ 
ference with freedom of contract, no more. It does not require 
the carriers to employ anyone. It does not forbid them to refuse 
to employ anyone, for any reason they deem good, even where the 
notion of a choice of persons is a fiction and wholesale employ¬ 
ment is necessary upon general principles that it might be proper 
to control. The section simply prohibits the more powerful party 
to exact certain undertakings, or to threaten dismissal or unjustly 
discriminate on certain grounds against those already employed. 
I hardly can suppose that the grounds on which a contract law- 


260 


THE POLICE POWER 


fully may be made to end are less open to regulation than other 
terms. So I turn to the general question whether the employment 
can be regulated at all. 

I confess that I think that the right to make contracts at will 
that has been derived from the word “liberty’’ in the amendments 
has been stretched to its extreme by the decisions; but they agree 
that sometimes the right may be restrained. Where there is, or 
generally is believed to be, an important ground of public policy 
for restraint, the Constitution does not forbid it, whether this 
court agrees or disagrees with the policy pursued. It cannot be 
doubted that to prevent strikes, and, so far as possible, to foster 
its scheme of arbitration, might be deemed by Congress an im¬ 
portant point of policy, and I think it impossible to say that Con¬ 
gress might not reasonably think that the provision in question 
would help a good deal to carry its policy along. But suppose the 
only effect really were to tend to bring about the complete union¬ 
izing of such railroad laborers as Congress can deal with, I think 
that object alone would justify the act. I quite agree that the 
question what and how much good labor unions do, is one on 
which intelligent people may differ; I think that laboring men 
sometimes attribute to them advantages, as many attribute to 
combinations of capital disadvantages, that really are due to eco¬ 
nomic conditions of a far wider and deeper kind; but I could not 
pronounce it unwarranted if Congress should decide that to foster 
a strong union was for the best interest, not only of the men, but 
of the railroads and the country at large. 

[Moody, J., did not sit.] 


NOBLE STATE BANK v. HASKELL. 

(Supreme Court of United States, 1911. 219 U. S. 104, 31 Sup. Ct. 186, 55 L. 

Ed. 112, 32 L. R. A. [N. S.] 1062, Ann. Cas. 1912A, 487.) 

[Error to the Supreme Court of Oklahoma. A state statute 
created a banking board directed to levy an assessment upon every 
state bank’s average daily deposits in order to create a depositors’ 
guaranty fund. When the cash of any insolvent bank in liquidation 
should be insufficient to pay all depositors, the deficit was to be 
made up from this guaranty fund and from further assessments, if 
necessary, reserving a lien upon the assets of the failing bank to 
secure money thus taken from the fund. Plaintiff bank sought to 
enjoin the banking board from collecting such assessments from 
it, and its petition was dismissed in the state courts.] 

Mr. Justice Holmes. * ^ * We must be cautious about 
pressing the broad words of the fourteenth amendment to a drily 
logical extreme. Many laws which it would be vain to ask the 
court to overthrow could be shown, easily enough, to transgress 



SCOPE AND LIMITS OF POWER 


261 


a scholastic interpretation of one or another of the great guaranties 
in the Bill of Rights. They more or less limit the liberty of the 
individual, or they diminish property to a certain extent. We have 
few scientifically certain criteria of legislation, and as it often is 
difficult to mark the line where what is called the police power of 
the states is limited by the Constitution of the United States, 
judges should be slow to read into the latter a nolumus mutare as 
against the lawmaking power. 

The substance of the plaintiffs argument is that the assessment 
takes private property for private use without compensation. And 
while we should assume that the plaintiff would retain a rever¬ 
sionary interest in its contribution to the fund, so as to be entitled 
to a return of what remained of it if the purpose were given up 
(see Danby Bank v. State Treasurer, 39 Vt. 92, 98), still there is no 
denying that by this law a portion of its property might be taken 
without return to pay debts of a failing rival in business. Never¬ 
theless, notwithstanding the logical form of the objection, there 
are more powerful considerations on the other side. In the first 
place, it is established by a series of cases that an ulterior public 
advantage may justify a comparatively insignficant taking of pri¬ 
vate property for what, in its immediate purpose, is a private use. 
Clark V. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. 
Cas. 1171; Strickley v. Highland Boy Gold Min. Co., 200 U. S. 
527, 531, 26 Sup. Ct. 301, 50 L. Ed. 581, 583, 4 Ann. Cas. 1174; Of- 
field V. New York, N. H. & H. R. Co., 203 U. S. 372, 27 Sup. Ct. 72, 
51 L. Ed. 231; Bacon v. Walker, 204 U. S. 311, 315, 27 Sup. Ct. 
289, 51 E Ed. 499, 501. And in the next, it would seem that there 
may be other cases beside the everyday one of taxation, in which 
the share of each party in the benefit of a scheme of mutual pro¬ 
tection is sufficient compensation for the correlative burden that it 
is compelled to assume. See Ohio Oil Co. v. Indiana, 177 U. S. 190, 
20 Sup. Ct. 576, 44 L. Ed. 729; Deserant v. Cerillos Coal R. Co., 
178 U. S. 409, 20 Sup. Ct. 967, 44 E. Ed. 1127, 20 Mor. Min. Rep. 
576. At least, if we have a case within the reasonable exercise of 
the police power as above explained, no more need be said. 

It may be said in a general way that the police power extends to 
all the great public needs. Camficld v. United States, 167 U. S. 
518, 17 Sup. Ct. 864, 42 E. Ed. 260. It may be put forth in aid of 
what is sanctioned by usage, or held by the prevailing morality 
or strong and preponderant opinion to be greatly and immediately 
necessary to the public welfare. Among matters of that sort prob¬ 
ably few would doubt that both usage and preponderant opinion 
give their sanction to enforcing the primary conditions of success¬ 
ful commerce. One of those conditions at the present time is the 
possibility of payment by checks drawn against bank deposits, to 
such an extent do checks replace currency in daily business. If, 
then, the legislature of the state thinks that the public welfare re- 


2(y2 


THE POLICE POWER 


quires the measure under consideration, analogy and principle are 
in favor of the power to enact it. Even the primary object of the 
required assessment is not a private benefit, as it was in the cases 
above cited of a ditch for irrigation or a railway to a mine, but it 
is to make the currency of checks secure, and by the same stroke 
to make safe the almost compulsory resort of depositors to banks 
as the only available means for keeping money on hand. The 
priority of claim given to depositors is incidental to the same ob¬ 
ject, and is justified in the same way. The power to restrict liber¬ 
ty by fixing a minimum of capital required of those who would 
engage in banking is not denied. The power to restrict invest¬ 
ments to securities regarded as relatively safe seems equally plain. 
It has been held, we do not doubt rightly, that inspections may be 
required and the cost thrown on the bank. See Charlotte, C. & A. 
R. Co. V. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255, 35 L. Ed. 1051. 
The power to compel, beforehand, co-operation, and thus, it is 
believed, to make a failure unlikely and a general panic almost 
impossible, must be recognized, if government is to do its proper 
work, unless we can say that the means have no reasonable rela¬ 
tion to the end. Gundling v. Chicago, 177 U. S. 183, 188, 20 Sup. 
Ct. 633, 44 L. Ed. 725. So far is that from being the case that the 
device is a familiar one. It was adopted by some states the better 
part of a century ago, and seems never to have been questioned 
until now. Danby Bank v. State Treasurer, 39 Vt. 92; People v. 
Walker, 17 N. Y. 502. Recent cases going not less far are Lemieux 
V. Young, 211 U. S. 489, 496, 29 Sup. Ct. 174, 53 L. Ed. 295, 300; 
Kidd, D. & P. Co. V. Musselman Grocer Co., 217 U. S. 461, 30 Sup. 
Ct. 606, 54 L. Ed. 839. 

It is asked whether the state could require all corporations or all 
grocers to help to guarantee each other’s solvency, and where we 
are going to draw the line. But the last is a futile question, and 
we will answer the others when they arise. With regard to the 
police power, as elsewhere in the law, lines are pricked out by the 
gradual approach and contact of decisions on the opposing sides. 
Hudson County Water Co. v. McCarter, 209 U. S. 349, 355, 28 Sup. 
Ct. 529, 52 L. Ed. 828, 831, 14 Ann. Cas. 560. It will serve as a 
datum on this side, that, in our opinion, the statute before us is 
well within the state’s constitutional power, while the use of the 
public credit on a large scale to help individuals in business has 
been held to be beyond the line. Citizens’ L. Asso. v. Topeka, 20 
Wall. 655, 22 L. Ed. 455; Lowell v. Boston, 111 Mass. 454, 15 Am. 
Rep. 39. 

The question that we have decided is not much helped by pro¬ 
pounding the further one, whether the right to engage in banking 
is or can be made a franchise. But as the latter question has some 
bearing on the former, and as it will have to be considered in the 
following cases, if not here, we will dispose of it now. It is not 


SCOPE AND LIMITS OF POWER 


263 


answered by citing authorities for the existence of the right at 
common law. There are many things that a man might do at com¬ 
mon law that the states may forbid. He might embezzle until a 
statute cut down his liberty. We cannot say that the public in¬ 
terests to which we have adverted, and others, are not sufficient 
to warrant the state in taking the whole business of banking un¬ 
der its control. On the contrary, we are of opinion that it may go 
on from regulation to prohibition except upon such conditions as it 
may prescribe. In short, when the Oklahoma legislature declares 
by implication that free banking is a public danger, and that incor¬ 
poration, inspection, and the above-described co-operation are nec¬ 
essary safeguards, this court certainly cannot say that it is wrong 
[citing cases]. 

Decree affirmed. 


HEAD V. AMOSKEAG MEG. CO. 

(Supreme Court of United States, 1885. 113 U. S. 9, 5 Sup. Ct. 441, 28 L. 

Ed. 889.) 

[Error to the Supreme Court of New Hampshire. A general 
statute authorized the erection of mills and dams upon nonnaviga- 
ble streams upon payment of damages to the owners of lands flow¬ 
ed by the dams. The Amoskeag Company filed a petition for the 
ascertainment of the damages suffered by Head from flowage from 
their dam, and Head alleged the invalidity of the statute under the 
fourteenth amendment. His objections were overruled and judg¬ 
ment was entered entitling the company to flow his land on pay¬ 
ment of the amount of damage found.] 

Mr. Justice Gray. ^ ^ [After referring to numerous mill 

acts in 29 states:] In most of those states, their validity has been 
assumed, without dispute; and they were never adjudged to be in¬ 
valid anywhere until since 1870, and then in 3 states only, and for 
incompatibility with their respective Constitutions. Loughbridge 
V. Harris (1871) 42 Ga. 500; Tyler v. Beacher (1871) 44 Vt. 648, 8 
Am. Rep. 398; Ryerson v. Brown (1877) 35 Mich. 333, 24 Am. 
Rep. 564. The earlier cases in Tennessee, Alabama and New York, 
containing dicta to the same effect, were decided upon other 
grounds. Harding v. Goodlett, 3 Yerg. (Tenn.) 41, 24 Am. Dec. 
546; Memphis Railroad v. Memphis, 4 Cold. (Tenn.) 406; Moore 
V. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 Ala. 288; Hay 
V. Cohoes Co., 3 Barb. (N. Y.) 42, 47, and 2 N. Y. 159, 51 Am. Dec. 
279. * * * 

The question whether the erection and maintenance of mills for 
manufacturing purposes under a general mill act, of which any 
owner of land upon a stream not navigable may avail himself at 
will, can be upheld as a taking, by delegation of the right of emi- 



264 


THE POLICE POWER 


nent domain, of private property for public use, in the constitu¬ 
tional sense, is so important and far reaching, that it does not be¬ 
come this court to express an opinion upon it, when not required 
for the determination of the rights of the parties before it. We 
prefer to rest the decision of this case upon the ground that such a 
statute, considered as regulating the manner in which the rights 
of proprietors of lands adjacent to a stream may be asserted and 
enjoyed, with a due regard to the interests of all, and to the pub¬ 
lic good, is within the constitutional power of the legislature. 

When property, in which several persons have a common inter¬ 
est, cannot be fully and beneficially enjoyed in its existing condi¬ 
tion, the law often provides a way in which they may compel one 
another to submit to measures necessary to secure its beneficial 
enjoyment, making equitable compensation to any whose control 
of or interest in the property is thereby modified. 

In the familiar case of land held by several tenants in common, 
or even by joint tenants with right of survivorship, any one of 
them may compel a partition, upon which the court, if the land 
cannot be equally divided, will order owelty to be paid, or in many 
states, under statutes the constitutionality of which has never been 
denied, will, if the estate is such that it cannot be divided, either 
set it off to one and order him to compensate the others in money, 
or else order the whole estate to be sold. King v. Reed, 11 Gray 
(Mass.) 490; Bentley v. Long Dock Co., 14 N. J. Eq. 480; s. c. on 
appeal, nom. Manners v. Bentley, 15 N. J. Eq. 501; Mead v. Mit¬ 
chell, 17 N. Y. 210, 72 Am. Dec. 455; Richardson v. Monson, 23 
Conn. 94. Water rights held in common, incapable of partition at 
law, may be the subject of partition in equity, either by apportion¬ 
ing the time and extent of use, or by a sale of the right and a divi¬ 
sion of the proceeds. Smith v. Smith, 10 Paige (N. Y.) 470; De 
Witt V. Harvey, 4 Gray (Mass.) 486; McGillivray v. Evans, 27 
Cal. 92. 

At the common law, as Lord Coke tells us: ‘^If two tenants in 
common, or joint tenants, be of an house or mill, and it fall in de¬ 
cay, and the one is willing to repair the same, and the other will 
not, he that is willing shall have a writ de reparatione facienda; 
and the writ saith, ad reparationem et sustentationem ejusdem 
domus teneantur; whereby it appeareth that owners are in that case 
bound pro bono publico to maintain houses and mills which are 
for habitation and use of men.” Co. Lit. 200b; 4 Kent Com. 370. 
In the same spirit, the statutes of Massachusetts, for a hundred 
and seventy-five years, have provided that any tenant in common 
of a mill in need of repair may notify a general meeting of all the 
owners for consultation, and that, if any one refuses to attend, or to 
agree with the majority, or to pay his share, the majority may 
cause the repairs to be made, and recover his share of the expenses 
out of the mill or its profits or earnings. Mass. Prov. Stat. 1709, 


SCOPE AND LIMITS OF POWER 


265 


ch. 3, 1 Prov. Laws (State ed.) 641, and Anc. Chart. 388; Stat. 1795, 
ch. 74, §§ 5-7; Rev. Stat. 1836, ch. 116, §§ 44-58; Gen. Stat. 1860, 
ch. 149, §§ 53-64; Pub. Stat. 1882, ch. 190, p 59-70. Xnd the stat¬ 
utes of New Hampshire, for more than eighty years, have made 
provision for compelling the repair of mills in such cases. Roberts 
V. Peavey, 7 Foster (27 N. H.) 477, 493. 

The statutes which have long existed in many states authorizing 
the majority of the owners in severalty of adjacent meadow or 
swamp lands to have commissioners appointed to drain and im¬ 
prove the whole tract, by cutting ditches or otherwise, and to as¬ 
sess and levy the amount of the expense upon all the proprietors in 
proportion to the benefits received, have been often upheld, in¬ 
dependently of any effect upon the public health, as reasonable reg¬ 
ulations for the general advantage of those who are treated for this 
purpose as owners of a common property. Coomes v. Burt, 22 
Pick. (Mass.) 422; Wright v. Boston, 9 Cush. (Mass.) 233, 241; 
Sherman v. Tobey, 3 Allen (Mass.) 7; Lowell v. Boston, 111 
Mass. 454, 469, 15 Am. Rep. 39; French v. Kirkland, 1 Paige (N. 
Y.) 117; People v. Brooklyn, 4 N. Y. 419, 438, 55 Am. Dec. 266; 
Coster V. Tide Water Co., 18 N. J. Eq. 54, 68, 518, 531; O’Reiley 
v. Kankakee Valley Drainage Co., 32 Ind. 169. 

By the maritime law, based, as Lord Tenterden observed, on 
the consideration that the actual employment of ships is “a mat¬ 
ter, not merely of private advantage to the owners, but of public 
benefit to the state,” and recognized in the decisions and the rules 
of this court, courts of admiralty, when the part-owners of a ship 
cannot agree upon her employment, authorize the majority to 
send her to sea, on giving security to the dissenting minority, to 
bring back and restore the ship, or, if she be lost, to pay them the 
value of their shares; and in such case the minority can neither 
recover part of the profits of the voyage nor compensation for the 
use of the ship. Abbott on Shipping, pt. 1, ch. 3, §§ 2, 3; The 
Steamboat Orleans, 11 Pet. 175, 183, 9 L. Ed. 677; Rule 20 in Ad¬ 
miralty, 3 How. vii.; The Marengo, 1 Low. 52, Fed. Cas. No. 9,065. 
If the part-owners are equally divided in opinion upon-the man¬ 
ner of employing the ship, then, according to the general maritime 
law, recognized and applied by Mr. Justice Washington, the ship 
may be ordered to be sold and the proceeds distributed among 
them. The Seneca, 18 Am. Jur. 485; s. c. 3 Wall. Jr. 395, Fed, 
Cas. No. 12,670. See, also. Story on Partnership, § 439; The Nelly 
Schneider, 3 P. D. 152. 

But none of the cases, thus put by way of illustration, so 
strongly call for the interposition of the law as the case before us. 
The right to the use of running water is publici juris, and common 
to all the proprietors of the bed and banks of the stream from its 
source to its outlet. Each has a right to the reasonable use of the 
water as it flows past his land, not interfering with a like reason- 


266 


THE POLICE POWER 


able use by those above or below him. One reasonable use of the 
water is the use of the power, inherent in the fall of the stream and 
the force of the current, to drive mills. That power cannot be used 
without damming up the water, and thereby causing it to flow 
back. If the water thus dammed up by one riparian proprietor 
spread over the lands of others, they could at common law bring 
successive actions against him for the injury so done them, or even 
have the dam abated. Before the mill acts, therefore, it was often 
impossible for a riparian proprietor to use the water power at all, 
without the consent of those above him. The purpose of these 
statutes is to enable any riparian proprietor to erect a mill and use 
the water power of the stream, provided he does not interfere with 
an earlier exercise by another of a like right or with any right of 
the public; and to substitute, for the common-law remedies of re¬ 
peated actions for damages and prostration of the dam, a new form 
of remedy, by which any one whose land is flowed can have assess¬ 
ed, once for all, either in a gross sum or by way of annual damages, 
adequate compensation for the injury. 

This view of the principle upon which general mill acts rest has 
been fully and clearly expounded in the judgments delivered by 
Chief Justice Shaw in the Supreme Judicial Court of Massachu¬ 
setts. In delivering the opinion of the court in a case decided in 
1832, he said: ‘‘The statute of 1796 is but a revision of a former 
law, and the origin of these regulations is to be found in the pro¬ 
vincial statute of 1714. They are somewhat at variance with that 
absolute right of dominion and enjoyment which every proprietor 
is supposed by law to have in his own soil; and in ascertaining 
their extent it will be useful to inquire into the principle upon which 
they are founded. We think they will be found to rest for their 
justification, partly upon the interest which the community at large 
has in the use and employment of mills, and partly upon the na¬ 
ture of the property, which is often so situated that it could not be 
beneficially used without the aid of this power. A stream of wa¬ 
ter often runs through the lands of several proprietors. One may 
have a sufficient mill-site on his own land, with ample space on 
his own land for a mill-pond or reservoir, but yet, from the opera¬ 
tion of the well-known physical law that fluids will seek and find 
a level, he cannot use his own property without flowing the water 
back more or less on the lands of some other proprietor. We think 
the power given by statute was intended to apply to such cases, 
and that the legislature meant to provide that, as the public inter¬ 
est in such case coincides with that of the mill-owner, and as the 
mill-owner and the owner of lands to be flowed cannot both enjoy 
their full rights, without some interference, the latter shall yield 
to the former, so far that the former may keep up his mill and head 
of water, notwithstanding the damage done to the latter, upon 
payment of an equitable compensation for the real damage sus- 


SCOPE AND LIMITS OF POWER 


267 


tained, to be ascertained in the mode provided by the statute.” 
'‘From this view of the object and purpose of the statute, we think 
it quite manifest that it was designed to provide for the most use¬ 
ful and beneficial occupation and enjoyment of natural streams and 
watercourses, where the absolute right of each proprietor to use 
his own land and water privileges, at his own pleasure, cannot be 
fully enjoyed, and one must of necessity, in some degree, yield to 
the other.” Fiske v. Framingham Manufacturing Co., 12 Pick. 
(Mass.) 68, 70-72. * * * 

Upon principle and authority, therefore, independently of any 
weight due to the opinions of the courts of New Hampshire and 
other states, maintaining the validity of general mill acts as taking 
private property for public use, in the strict constitutional meaning 
of that phrase, the statute under which the Amoskeag Manufactur¬ 
ing Company has flowed the land in question is clearly valid as a 
just and reasonable exercise of the power of the legislature, hav¬ 
ing regard to the public good, in a more general sense, as well as 
to the rights of the riparian proprietors, to regulate the use of the 
water power of running streams, which without some such regula¬ 
tion could not be beneficially used. The statute does not authorize 
new mills to be erected to the detriment of existing mills and mill 
privileges. And by providing for an assessment of full compensa¬ 
tion to the owners of lands flowed, it avoids the difficulty which 
arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166, 20 
L. Ed. 557. * * * 

Judgment affirmed. 


COMMONWEALTH v. STRAUSS. 

(Supreme Judicial Court of Massachusetts, 1906. 191 Mass. 545, 78 N. E. 136, 
11 L. R. A. [N. S.] 968, 6 Ann. Cas. 842.) 

[Exceptions to indictment. A Massachusetts statute criminally 
forbade any person doing business in the state to make it a condi¬ 
tion of the sale of goods that the purchaser should not deal in the 
goods of any other person; with certain exceptions regarding ex¬ 
clusive agents and selling territory. Strauss, agent for the Con¬ 
tinental Tobacco Company, sold plug tobacco on condition that 
if the purchaser dealt in the goods of no other tobacco manufac¬ 
turer a rebate of six per cent, would be returned. The prices ask¬ 
ed for tobacco made the receipt of this rebate practically necessary 
in order to secure a profit to the retailer. Defendant, being con¬ 
victed under this statute, alleged exceptions.] 

KnowlTon, C. J. * * The rights relied upon under the 

fourteenth amendment to the Constitution of the United States, 
and under the Declaration of Rights in the Constitution of Massa¬ 
chusetts, are substantially the same, namely the right of every per- 



268 


THE POLICE POWER 


son to his life, liberty and property, including freedom to use his 
faculties in all lawful ways, “to live and work where he will, to 
earn his livelihood by any lawful calling, to pursue any livelihood 
or avocation, and for that purpose to enter into all contracts which 
may be proper, necessary and essential to his carrying out to a 
successful conclusion the purposes above mentioned.’’ See Allgeyer 
V. Louisiana, 165 U. S. 578, 589, 17 Sup. Ct. 427, 431 (41 L. Ed. 
832). * * * 

There is no doubt that the statute before us puts a limitation 
upon the general right to make contracts. The contention of the 
commonwealth is that this limitation is valid as an exercise of the 
police power. The nature of the police power and its extent, as 
applied to conceivable cases, cannot easily be stated with exact¬ 
ness. It includes the right to legislate in the interest of the public 
health, the public safety and the public morals. If the power is 
to be held within the limits of the field thus defined, the words 
should be interpreted broadly and liberally. If we are to include in 
the definition, as many judges have done, the right to legislate for 
the public welfare, this term* should be defined with some strict¬ 
ness, so as not to include everything that might be enacted on 
grounds of mere expediency. In the every late case of Lochner v. 
New York, 198 U. S. 45, 53, 25 Sup. Ct. 539, 541, 49 L. Ed. 937, 3 
Ann. Cas. 1133, the majority of the court said, “Those powers, 
broadly stated, and without at present any attempt at a more specif¬ 
ic limitation, relate to the safety, health, morals and general wel¬ 
fare of the public.” In the opinion in Louisville & Nashville Rail¬ 
road V. Kentucky, 161 U. S. 677, 701, 16 Sup. Ct. 714, 723 (40 L. Ed. 
849) we find this language: “The general rule holds good, that 
whatever is contrary to public policy or inimical to the public in¬ 
terests is subject to the police power of the state, and within legis¬ 
lative control, and in the exertion of such power the Legislature is 
vested with a large discretion, which if exercised for the protection 
of the public, is beyond the reach of judicial inquiry.” 

It becomes necessary to look somewhat critically at the statute 
before us, to discover its effect upon the rights of contracting par¬ 
ties, and the purpose of the Legislature in enacting it. In the sale 
of goods to be resold it forbids one kind of contract which might be 
made in competition with other sellers of similar goods. It leaves 
open every other kind of contract. We may infer that the Legisla¬ 
ture was providing for cases in which this particular kind of con¬ 
tract would be unfair competition as against weaker dealers, and 
would be injurious to the public as tending to crush ordinary com¬ 
petitors, and thus create a monopoly, from which the community as 
consumers would ultimately suffer. If, at the time of the enact¬ 
ment of this statute, there were dangers of this kind confronting 
the people of the commonwealth, and if this prohibition is a rea¬ 
sonable way of averting such dangers, we find justification for the 


SCOPE AND LIMITS OF POWER 


269 


legislation, unless it involves a serious injury to those who are re¬ 
strained by it. It permits every kind of contract of sale but one. 
It does not prohibit the appointment of agents, or sole agents, for 
the sale of property. It allows contracts for the exclusive sale of 
goods, wares or merchandise. The contracts that it forbids are 
only those which, in ordinary competition among equals, no one 
would have any interest or desire to make. As a rule, it is only a 
person or corporation that is intrenched in a position of power that 
can afford to say to a retailer or jobber, ‘T will not let you have my 
goods unless you will agree to sell none furnished by others.” 
One who controls the sources of supply of goods, which are in such 
demand that a dealer cannot afford to be without them, can safely 
say to a purchaser “You must give me all your trade if you want 
to sell any of my goods.” In that way he may be able to obtain 
a complete monopoly of the trade in goods such as he supplies. 

The evidence in this case illustrates some of the tendencies of the 
times. The defendant’s employer, the Continental Tobacco Com¬ 
pany, is incorporated with a capital stock of $75,000,000. At the 
time of the sales for which the defendant is indicted it had ab¬ 
sorbed more than 12 establishments used for the manufacture and 
sale of plug tobaccos, and owned by as many proprietors. Before 
its incorporation there was free and open competition in the plug 
tobacco market in Massachusetts. It so consolidated and restrict¬ 
ed the trade that, in January, 1904, it produced about 95 per cent, 
of the plug tobacco, and about 80 per cent, of the cut plug tobacco 
in Massachusetts. Conditions were about the same in all parts of 
the state. There were about 210 jobbers in Massachusetts, and 
practically all stopped buying of independent manufacturers when 
this corporation made this new proposition, presented by the de¬ 
fendant in making the sales complained of. It had acquired such 
strength in its own field that, by the use of such means as the 
statute forbade, it could expect easily to obtain a practical monop¬ 
oly of the plug tobacco trade in Massachusetts. This evidence 
furnishes an illustration of what we fairly may assume was being 
done, or might be expected to be done, in the manufacture and sale 
of other products, even of some of the necessaries of life. Tobacco 
is not one of the necessaries of life, but its use is so common that 
to many persons it seems almost as necessary as food. The poor 
much more than the rich would be likely to be affected by the 
monopoly of the market for plug tobacco, and a rise in the price 
which might be expected to follow it. 

This statute was not enacted for protection in the purchase of 
any one kind of property. Its object doubtless was to prevent the 
use of this particular method of crushing competitors in any kind 
of trade in which the public might be interested. Especially was it 
important to prevent monopoly in the sale of the necessaries of 


270 


THE POLICE POWER 


life. In view of this, we deem it not unreasonable that the statute 
was made to apply to sales of all kinds of goods. 

Legislation should be adapted to existing conditions. A few 
years ago there was no occasion for such an enactment. But late¬ 
ly we see great aggregations of capital formed to obtain command, 
if possible, of the field of production or distribution into which they 
enter. Even now, in the transaction of business among equals 
where there is free competition, the statute is unnecessary, for 
there is no inducement to do that which it forbids. Its practical 
effect is to prevent great corporations from making a certain kind 
of contracts intended to drive ordinary competitors out of busi¬ 
ness. 

The question is whether, at the time of the passage of this stat¬ 
ute, there were conditions actually existing or reasonably anticipat¬ 
ed which called for such legislative intervention in the interest of 
the general public. We are of opinion that there were, and that, in 
a broad and liberal sense of the words, this statute was enacted in 
the interest of the public health and the public safety, if not of the 
public morals. Certainly the purpose of the Legislature was to 
promote the general welfare of the public. We cannot say that 
this legislative action was not a legitimate exercise of the police 
power. Its invasion of the general right to make contracts is so 
slight, and in a field so remote from ordinary mercantile transac¬ 
tions, that there is little ground of objection on that score. The 
abuse at which the statute is aimed, while not practiced by many 
persons, is real and widely pervasive. ^ ♦ 

Exceptions overruled. 


YICK WO V. HOPKINS. 

(Supreme Court of United States, 1886. 118 U. S. 356, 6 Sup. Ct. 1064, 30 U. 

Ed. 220.) 

[Error to the Supreme Court of California. An ordinance of 
San Francisco forbade any person to carry on a laundry within the 
city without the consent of the board of supervisors, except in 
buildings of brick or stone. Yick Wo, a native of China, who had 
conducted a laundry in a certain wooden building in that city for 
22 years, and who had there complied with all existing regulations 
for the prevention of fire and the protection of health, was refused 
such consent by said board, upon his application; and he was later 
convicted and imprisoned by order of the local police court for con¬ 
ducting his laundry without such consent. The state Supreme 
Court denied his petition for a writ of habeas corpus. One Wo' 
Lee, in a similar situation, was denied a writ of habeas corpus by 
the United States Circuit Court, in California. Yick Wo took a 



SCOPE AND LIMITS OF POWER 


271 


writ of error, and Wo Lee an appeal. Other facts appear in the 
opinion.] 

Mr. Justice Matthews. * * ^ These ordinances * * 

seem intended to confer, and actually do confer, not a discretion to 
be exercised upon a consideration of the circumstances of each 
case, but a naked and arbitrary power to give or withhold consent, 
not only as to places, but as to persons. So that, if an applicant for 
such consent, being in every way a competent and qualified person, 
and having complied with every reasonable condition demanded by 
any public interest, should, failing to obtain the requisite consent 
of the supervisors to the prosecution of his business, apply for re¬ 
dress by the judicial process of mandamus, to require the super¬ 
visors to consider and act upon his case, it would be a sufficient 
answer for them to say that the law had conferred upon them au¬ 
thority to withhold their assent, without reason and without re¬ 
sponsibility. The power given to them is not confided to their 
discretion in the legal sense of that term, but is granted to their 
mere will. It is purely arbitrary, and acknowledges neither guid¬ 
ance nor restraint. * ♦ * 

The ordinance ♦ ♦ ♦ does not prescribe a rule and condi¬ 

tions for the regulation of the use of property for laundry pur¬ 
poses, to which all similarly situated may conform. It allows with¬ 
out restriction the use for such purposes of buildings of brick or 
stone; but, as to wooden buildings, constituting nearly all those 
in previous use, it divides the owners or occupiers into two classes, 
not having respect to their personal character and qualifications 
for the business, nor the situation and nature and adaptation of the 
buildings themselves, but merely by an arbitrary line, on one side 
of which are those who are permitted to pursue their industry by 
the mere will and consent of the supervisors, and on the other those 
from whom tfiat consent is withheld, at their mere will and 
pleasure. And both classes are alike only in this, that they are 
tenants at will, under the supervisors, of their means of living. 
The ordinance, therefore, also differs from the not unusual case, 
where discretion is lodged by law in public officers or bodies to 
grant or withhold licenses to keep taverns, or places for the sale 
of spirituous liquors, and the like, when one of the conditions is 
that the applicant shall be a fit person for the exercise of the privi¬ 
lege, because in such cases the fact of fitness is submitted to the 
judgment of the officer, and calls for the exercise of a discretion of 
a judicial nature. * * * 

The fourteenth amendment to the Constitution is not confined to 
the protection of citizens. It says: “Nor shall any state deprive 
any person of life, liberty, or property without due process of law; 
nor deny to any person within its jurisdiction the equal protection 
of the laws.’' These provisions are universal in their application, 
to all persons within the territorial jurisdiction, without regard to 


272 


THE POLICE POWER 


any differences of race, of color, or of nationality; and the equal 
protection of the laws is a pledge of the protection of equal laws. 
* * 

It is contended on the part of the petitioners, that the ordinances 
for violations of which they are severally sentenced to imprison¬ 
ment, are void on their face, as being within the prohibitions of the 
fourteenth amendment; and, in the alternative, if not so, that they 
are void by reason of their administration, operating unequally, so 
as to punish in the present petitioners what is permitted to others 
as lawful, without any distinction of circumstances—an unjust and 
illegal discrimination, it is claimed, which, though not made ex¬ 
pressly by the ordinances, is made possible by them. 

When we consider the nature and the theory of our institutions 
of government, the principles upon which they are supposed to 
rest, and review the history of their development, we are constrain¬ 
ed to conclude that they do not mean to leave room for the play 
and action of purely personal and arbitrary power. Sovereignty 
itself is, of course, not subject to law, for it is the author and 
source of law; but in our system, while sovereign powers are dele¬ 
gated to the agencies of government, sovereignty itself remains 
with the people, by whom and for whom all government exists and 
acts. And the law is the definition and limitation of power. It 
is, indeed, quite true, that there must always be lodged somewhere, 
and in some person or body, the authority of final decision; and in 
many cases of mere administration the responsibility is purely 
political, no appeal lying except to the ultimate tribunal of the 
public judgment, exercised either in the pressure of opinion or by 
means of the suffrage. But the fundamental rights to life, liberty, 
and the pursuit of happiness, considered as individual possessions, 
are secured by those maxims of constitutional law which are the 
monuments showing the victorious progress of the race in secur¬ 
ing to men the blessings of civilization under the reign of just and 
equal laws, so that, in the famous language of the Massachusetts 
Bill of Rights, the government of the commonwealth “may be a 
government of laws and not of men.” For, the very idea that one 
man may be compelled to hold his life, or the means of living, or 
any material right essential to the enjoyment of life, at the mere 
will of another, seems to be intolerable in any country where free¬ 
dom prevails, as being the essence of slavery itself. ^ ^ * 

This conclusion, and the reasoning on which it is based, are de¬ 
ductions from the face of the ordinance, as to its necessary tenden¬ 
cy and ultimate actual operation. In the present cases we are not 
obliged to reason from the probable to the actual, and pass upon 
the validity of the ordinances complained of, as tried merely by 
the opportunities which their terms afford, of unequal and unjust 
discrimination in their administration. For the cases present the 
ordinances in actual operation, and the facts shown establish an 


SCOPE AND LIMITS OF POWER 


273 


administration directed so exclusively against a particular class of 
persons as to warrant and require the conclusion, that, whatever 
may have been the intent of the ordinances as adopted, they are 
applied by the public authorities charged with their administration, 
and thus representing the state itself, with a mind so unequal and 
oppressive as to amount to a practical denial by the state of that 
equal protection of the laws which is secured to the petitioners, as 
to all other persons, by the broad and benign provisions of the 
fourteenth amendment to the Constitution of the United States. 
Though the law itself be fair on its face and impartial in appear¬ 
ance, yet, if it is applied and administered by public authority with 
an evil eye and an unequal hand, so as practically to make unjust 
and illegal discriminations between persons in similar circumstanc¬ 
es, material to their rights, the denial of equal justice is still within 
the prohibition of the Constitution. This principle of interpre¬ 
tation has been sanctioned by this court in Henderson v. Mayor of 
New York, 92 U. S. 259, 23 L. Ed. 543, Chy Lung v. Freeman, 92 
U. S. 275, 23 L. Ed. 550, In re Virginia, 100 U. S. 339, 25 L. Ed. 676, 
Neal V. Delaware, 103 U. S. 370, 26 L. Ed. 567, and Soon Ring v. 
Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145. 

The present cases, as shown by the facts disclosed in the record, 
are within this class. It appears that both petitioners have com¬ 
plied with every requisite, deemed by the law or by the public 
officers charged with its administration, necessary for the protec¬ 
tion of neighboring property from fire, or as a precaution against 
injury to the public health. No reason whatever, except the will 
of the supervisors, is assigned why they should not be permitted 
to carry on, in the accustomed manner, their harmless and useful 
occupation, on which they depend for a livelihood. And while this 
consent of the supervisors is withheld from them and from two 
hundred others who have also petitioned, all of whom happen to 
be Chinese subjects, eighty others, not Chinese subjects, are per¬ 
mitted to carry on the same business under similar conditions. The 
fact of this discrimination is admitted. No reason for it is shown, 
and the conclusion cannot be resisted, that no reason for it exists 
except hostility to the race and nationality to which the petitioners 
belong, and which in the eye of the law is not justified. The dis¬ 
crimination is, therefore, illegal, and the public administration 
which enforces it is a denial of the equal protection of the laws 
and a violation of the fourteenth amendment of the Constitution. 
The imprisonment of the petitioners is, therefore, illegal, and they 
must be discharged. 

Judgment reversed. 

Hall Cases Const.Ii.— 18 


274 


POWER OF TAXATION 


POWER OP TAXATION 
1. Independence of Federal and State Governments ^ 


McCulloch v. Maryland. 

(Supreme Court of United States, 1819. 4 Wheat. 316, 4 L. Ed. 579.) 

[The facts and first part of the opinion appear ante, p. 77. 
The remainder, dealing with the power of Maryland to tax the 
local United States branch bank, follows:] 

Mr. Chief Justice Marshaee. ♦ * * That the power of tax¬ 

ation is one of vital importance; that it is retained by the states; 
that it is not abridged by the grant of a similar power to the gov¬ 
ernment of the Union; th^t it is to be concurrently exercised by 
the two governments: are truths which have never been denied. 
But, such is the paramount character of the Constitution, that its 
capacity to withdraw any subject from the action of even this pow¬ 
er, is admitted. The states are expressly forbidden to lay any 
duties on imports or exports, except what may be absolutely neces¬ 
sary for executing their inspection laws. If the obligation of this 
prohibition must be conceded—if it may restrain a state from the 
exercise of its taxing power on imports and exports; the same 
paramount character would seem to restrain, as it certainly may 
restrain, a state from such other exercise of this power, as is in its 
nature incompatible with, and repugnant to, the constitutional laws 
of the Union. A law, absolutely repugnant to another, as entirely 
repeals that other as if express terms of repeal were used. 

On this ground the counsel for the bank place its claim to be ex¬ 
empted from the power of a state to tax its operations. There is 
no express provision for the case, but the claim has been sustained 
on a principle which so entirely pervades the Constitution, is so 
intermixed with the materials which compose it, so interwoven 
with its web, so blended with its texture, as to be incapable of be¬ 
ing separated from it, without rending it into shreds. 

This great principle is, that the Constitution and the laws made 
in pursuance thereof are supreme; that they control the Constitu¬ 
tion and laws of the respective states, and cannot be controlled 
by them. From this, which may be almost termed an axiom, other 
propositions are deduced as corollaries, on the truth or error of 
which, and on their application to this case, the cause has been 
supposed to depend. These are, 1st. That a power to create im¬ 
plies a power to preserve. 2d. That a power to destroy, if wielded 

i For discussion of principles, see Black, Const. Law (3d Ed.) § 159. 



INDEPENDENCE OP FEDERAL AND STATE GOVERNMENTS 275 

by a different hand, is hostile to, and incompatible with, these 
powers to create and to preserve. 3d. That where this repugnancy 
exists, that authority which is supreme must control, not yield to 
that over which it is supreme. ^ ^ 

The power of Congress to create, and of course to continue, the 
bank, was the subject of the preceding part of this opinion; and 
is no longer to be considered as questionable. 

That the power of taxing it by the states may be exercised so 
as to destroy it, is too obvious to be denied. But taxation is said 
to be an absolute power, which acknowledges no other limits than 
those expressly prescribed in the Constitution, and like sovereign 
power of every other description, is trusted to the discretion of 
those who use it. But the very terms of this argument admit that 
the sovereignty of the state, in the article of taxation itself, is sub¬ 
ordinate to, and may be controlled by, the Constitution of the Unit¬ 
ed States. How far it has been controlled by that instrument must 
be a question of construction. In making this construction, no 
principle not declared, can be admissible, which would defeat the 
legitimate operations of a supreme government. It is of the very 
essence of supremacy to remove all obstacles to its action within 
its own sphere, and so to modify every power vested in subordi¬ 
nate governments, as to exempt its own operations from their own 
influence. This effect need not be stated in terms. It is so in¬ 
volved in the declaration of supremacy, so necessarily implied in 
it, that the expression of it could not make it more certain. We 
must, therefore, keep it in view while construing the Constitution. 

The argument on the part of the state of Maryland, is, not that 
the states may directly resist a law of Congress, but that they 
may exercise their acknowledged powers upon it, and that the Con¬ 
stitution leaves them this right in the confidence that they will not 
abuse it. 

Before we proceed to examine this argument, and to subject it 
to the test of the Constitution, we must be permitted to bestow a 
few considerations on the nature and extent of this original right 
of taxation, which is acknowledged to remain with the states. It 
is admitted that the power of taxing the people and their property 
is essential to the very existence of government, and may be legiti¬ 
mately exercised on the objects to which it is applicable, to the 
utmost extent to which the government may choose to carry it. 
The only security against the abuse of this power, is found in the 
structure of the government itself. In imposing a tax the legisla¬ 
ture acts upon its constituents. This is in general a sufficient se¬ 
curity against erroneous and oppressive taxation. 

The people of a state, therefore, give to their government a 
right of taxing themselves and their property, and as the exigen¬ 
cies of government cannot be limited, they prescribe no limits to 
the exercise of this right, resting confidently on the interest of the 


276 


POWER OF TAXATION 


legislator, and on the influence of the constituents over their repre¬ 
sentative, to guard them against its abuse. But the means em¬ 
ployed by the government of the Union have no such security, nor 
is the right of a state to tax them sustained by the same theory. 
Those means are not given by the people of a particular state, not 
given by the constituents of the legislature, which claim the right 
to tax them, but by the people of all the states. They are given 
by all, for the benefit of all—and upon theory, should be subjected 
to that government only which belongs to all. 

It may be objected to this definition, that the power of taxation 
is not confined to the people and property of a state. It may be 
exercised upon every object brought within its jurisdiction. This 
is true. But to what source do we trace this right? It is obvious, 
that it is an incident of sovereignty, and is co-extensive with that 
to which it is an incident. All subjects over which the sovereign 
power of a state extends, are objects of taxation; but those over 
which it does not extend, are, upon the soundest principles, exempt 
from taxation. This proppsition may almost be pronounced self- 
evident. 

The sovereignty of a state extends to everything which exists 
by its own authority, or is introduced by its permission; but does 
it extend to those means which are employed by Congress to carry 
into execution powers conferred on that body by the people of the 
United States? We think it demonstrable that it does not. Those 
powers are not given by the people of a single state. They are 
given by the people of the United States, to a government whose 
laws, made in pursuance of the Constitution, are declared to be 
supreme. Consequently, the people of a single state cannot confer 
a sovereignty which will extend over them. 

If we measure the power of taxation residing in a state, by the 
extent of sovereignty which the people of a single state possess, 
and can confer on its government, we have an intelligible standard, 
applicable to every case to which the power may be applied. We 
have a principle which leaves the power of taxing the people and 
property of a state unimpaired; which leaves to a state the com¬ 
mand of all its resources, and which places beyond its reach, all 
those powers which are conferred by the people of the United 
States on the government of the Union, and all those means which 
are given for the purpose of carrying those powers into execution. 
We have a principle which is safe for the states, and safe for the 
Union. We are relieved, as we ought to be, from clashing sover¬ 
eignty; from interfering powers; from a repugnancy between a 
right in one government to pull down what there is an acknowl¬ 
edged right in another to build up; from the incompatibility of a 
right in one government to destroy what there is a right in another 
to preserve. We are not driven to the perplexing inquiry, so unfit 
for the judicial department, what degree of taxation is the legiti- 


INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 277 

mate use, and what degree may amount to the abuse of the power. 
The attempt to use it on the means employed by the government 
of the Union, in pursuance of the Constitution, is itself an abuse, 
because it is the usurpation of a power, which the people of a single 
state cannot give. 

We find, then, on just theory, a total failure of this original right 
to tax the means employed by the government of the Union, for the 
execution of its powers. The right never existed, and the ques¬ 
tion whether it has been surrendered, cannot arise. But, waiving 
this theory for the present, let us resume the inquiry, whether this 
power can be exercised by the respective states, consistently with a 
fair construction of the Constitution? 

That the power to tax involves the power to destroy; that the 
power to destroy may defeat and render useless the power to 
create; that there is a plain repugnance, in conferring on one gov¬ 
ernment a power to control the constitutional measures of another, 
which other, with respect to those very measures, is declared, to 
be supreme over that which exerts the control, are propositions not 
to be denied. But all inconsistencies are to be reconciled by the 
magic of the word “confidence.” Taxation, it is said, does not 
necessarily and unavoidably destroy. To carry it to the excess of 
destruction would be an abuse, to presume which, would banish 
that confidence which is essential to all government. 

But is this a case of confidence? Would the people of any one 
state trust those of another with a power to control the most in¬ 
significant operations of their state government? We know they 
would not. Why, then, should we suppose that the people of any 
one state should be willing to trust those of another with a pow¬ 
er to control the operations of a government to which they have 
confided their most important and most valuable interests? In 
the legislature of the Union alone, are all represented. The legis¬ 
lature of the Union alone, therefore, can be trusted by the people 
with the power of controlling measures which concern all, in the 
confidence that it will not be abused. This, then, is not a case of 
confidence, and we must consider it as it really is. 

If we apply the principle for which the state of Maryland con¬ 
tends, to the Constitution generally, we shall find it capable of 
changing totally the character of that instrument. We shall find 
it capable of arresting all the measures of the government, and of 
prostrating it at the foot of the states. The American people 
have declared their Constitution, and the laws made in pursuance 
thereof, to be supreme; but this principle would transfer the su¬ 
premacy, in fact, to the states. 

If the states may tax one instrument, employed by the govern¬ 
ment in the execution of its powers, they may tax any and every 
other instrument. They may tax the mail; they may tax the 
mint; they may tax patent rights; they may tax the papers of the 


278 


POWER OF TAXATION 


custom-house; they may tax judicial process; they may tax all 
the means employed by the government, to an excess which would 
defeat all the ends of government. This was not intended by the 
American people. They did not design to make their government 
dependent on the states. 

Gentlemen say, they do not claim the right to extend state taxa¬ 
tion to these objects. They limit their pretensions to property. 
But on what principle is this distinction made? Those who make 
it have furnished no reason for it, and the principle for which they 
contend denies it. They contend that the power of taxation has 
no other limit than is found in the 10th section of the 1st article 
of the Constitution; that, with respect to everything else, the pow¬ 
er of the states is supreme, and admits of no control. If this be 
true, the distinction betwen property and other subjects to which 
the power of taxation is applicable, is merely arbitrary, and can 
never be sustained. This is not all. If the controlling power of the 
states be established; if their supremacy as to taxation be ac¬ 
knowledged ; what is to restrain their exercising this control in any 
shape they may please to give it? Their sovereignty is not confined 
to taxation. That is not the only mode in which it might be dis¬ 
played. The question is, in truth, a question of supremacy; and 
if the right of the states to tax the means employed by the gen¬ 
eral government be conceded, the declaration that the Constitu¬ 
tion, and the laws made in pursuance thereof, shall be the supreme 
law of the land, is empty and unmeaning declamation. * * * 

[After referring to the arguments of the “Federalist’:] It has 
also been insisted, that, as the power of taxation in the general 
and state governments is acknowledged to be concurrent, every 
argument which would sustain the right of the general government 
to tax banks chartered by the states, will equally sustain the right 
of the states to tax banks chartered by the general government. 

But the two cases are not on the same reason. The people of all 
the states have created the general government, and have conferred 
upon it the general power of taxation. The people of all the 
states, and the states themselves, are represented in Congress, and, 
by their representatives, exercise this power. When they tax the 
chartered institutions of the states, they tax their constituents; 
and these taxes must be uniform. But when a state taxes the 
operations of the government of the United States, it acts upon 
institutions created, not by their own constituents, but by people 
over whom they claim no control. It acts upon the measures of a 
government created by others as well as themselves, for the bene¬ 
fit of others in common with themselves. The difference is that 
which always exists, and always must exist, between the action of 
the whole on a part, and the action of a part on the whole—^be¬ 
tween the laws of a government declared to be supreme, and those 
of a government which, when in opposition to those laws, is not 


INDEPENDENCE OP FEDERAL AND STATE GOVERNMENTS 279 

supreme. But if the full application of this argument could be 
admitted, it might bring into question the right of Congress to tax 
the state banks, and could not prove the right of the states to tax 
the Bank of the United States. 

The court has bestowed on this subject its most deliberate con¬ 
sideration. The result is a conviction that the states have no pow- 
er, by taxation or otherwise, to retard, impede, burden, or in any 
manner control, the operations of the constitutional laws enacted 
by Congress to carry into execution the powers vested in the gen¬ 
eral government. This is, we think, the unavoidable consequence 
of that supremacy which the Constitution has declared. We are 
unanimously of opinion, that the law passed by the legislature of 
Maryland, imposing a tax on the Bank of the United States, is un¬ 
constitutional and void. 

This opinion does not deprive the states of any resources which 
they originally possessed. It does not extend to a tax paid by the 
real property of the bank, in common with the other real property 
within the state, nor to a tax imposed on the interest which the 
citizens of Maryland may hold in this institution, in common with 
other property of the same description throughout the state. But 
this is a tax on the operations of the bank, and is. consequently, a 
tax on the operation of an instrument employed by the government 
of the Union to carry its powers into execution. Such a tax must 
be unconstitutional. 

Judgment reversed. 


THE COLLECTOR v. DAY. 

(Supreme Court of United States, 1871. 11 Wall. 113, 20 L. Ed. 122.) 

[Error to the federal Circuit Court for Massachusetts. Federal 
statutes of 1864-67 levied a 5 per cent, tax upon all incomes of resi¬ 
dents of the United States over $1,000. Day, a Massachusetts pro¬ 
bate judge, was assessed upon his judicial salary, and, paying the 
tax under protest, sued to recover it back from the collector. From 
a judgment for Day this writ was taken.] 

Mr. Justice Nklson. The case presents the question whether or 
not it is competent for Congress, under the Constitution of the 
United States, to impose a tax upon the salary of a judicial officer 
of a State? 

In Dobbins v. Commissioners of Erie County, 16 Pet. 435, 10 L. 
Ed. 1022, it was decided that it was not competent for the legisla¬ 
ture of a state to levy a tax upon the salary or emoluments of an 
officer of the United States. The decision was placed mainly upon 
the ground that the officer was a means or instrumentality em¬ 
ployed for carrying into, effect some of the legitimate powers of the 
government, which could not be interfered with by taxation or oth- 



280 


POWER OF TAXATION 


erwise by the states, and that the salary or compensation for the 
service of the officer was inseparably connected with the office; 
that if the officer, as such, was exempt, the salary assigned for his 
support or maintenance while holding the office was also, for like 
reasons, equally exempt. * * * We shall now proceed to show 

that, upon the same construction of that instrument, and for like 
reasons, that government is prohibited from taxing the salary of 
the judicial officer of a state. * * 

The general government, and the states, although both exist 
within the same territorial limits, are separate and distinct sover¬ 
eignties, acting separately and independently of each other, within 
their respective spheres. The former in its appropriate sphere is 
supreme; but the states within the limits of their powers not 
granted, or, in the language of the tenth amendment, ‘Reserved,” 
are as independent of the general government as that government 
within its sphere is independent of the states. * * * Upon 

looking into the Constitution, it will be found that but a few of the 
articles in that instrument could be carried into practical effect 
without the existence of the states. 

Two of the great departments of the government, the executive 
and legislative, depend upon the exercise of the powers, or upon 
the people of the states. The Constitution guarantees to the states 
a republican form of government, and protects each against in¬ 
vasion or domestic violence. Such being the separate and inde¬ 
pendent condition of the states in our complex system, as recog¬ 
nized by the Constitution, and the existence of which is so indis¬ 
pensable, that, without them, the general government itself would 
disappear from the family of nations, it would seem to follow, as 
a reasonable, if not a necessary consequence, that the means and in¬ 
strumentalities employed for carrying on the operations of their 
governments, for preserving their existence, and fulfilling the high 
and responsible duties assigned to them in the Constitution, should 
be left free and unimpaired, should not be liable to be crippled, 
much less defeated, by the taxing power of another government, 
which power acknowledges no limits but the will of the legislative 
body imposing the tax. And, more especially, those means and 
instrumentalities which are the creation of their sovereign and re¬ 
served rights, one of which is the establishment of the judicial de¬ 
partment, and the appointment of officers to administer their laws. 
Without this power, and the exercise of it, we risk nothing in say¬ 
ing that no one of the states under the form of government guar¬ 
anteed by the Constitution could long preserve its existence. A 
despotic government might. We have said that one of the re¬ 
served powers was that to establish a judicial department; it 
would have been more accurate, and in accordance with the exist¬ 
ing state of things at the time, to have said the power to maintain 
a judicial department. All of the thirteen states were in the pos- 


INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 281 

session of this power, and had exercised it at the adoption ot the 
Constitution; and it is not pretended that any grant of it to the 
general government is found in that instrument. It is, therefore, 
one of the sovereign powers vested in the states by their constitu¬ 
tions, which remained unaltered and unimpaired, and in respect to 
which the state is as independent of the general government as 
that government is independent of the states. 

The supremacy of the general government, therefore, so much 
relied on in the argument of the counsel for the plaintiff in error, 
in respect to the question before us, cannot be maintained. The 
two governments are upon an equality, and the question is whether 
the power “to lay and collect taxes” enables the general govern¬ 
ment to tax the salary of a judicial officer of the state, which offi¬ 
cer is a means or instrumentality employed to carry into execution 
one of its most important functions, the administration of the laws, 
and which concerns the exercise of a right reserved to the states? 

We do not say the mere circumstance of the establishment of the 
judicial department, and the appointment of officers to administer 
the laws, being among the reserved powers of the state, disables 
the general government from levying the tax, as that depends upon 
the express power “to lay and collect taxes,” but it shows that it 
is an original inherent power never parted with, and, in respect 
to which, the supremacy of that government does not exist, and is 
of no importance in determining the question; and further, that 
being an original and reserved power, and the judicial officers ap¬ 
pointed under it being a means or instrumentality employed to 
carry it into effect, the right and necessity of its unimpaired exer¬ 
cise, and the exemption of the officer from taxation by the general 
government stand upon as solid a ground, and are maintained by 
principles and reasons as cogent, as those which led to the exemp¬ 
tion of the federal officer in Dobbins v. Commissioners of Erie from 
taxation by the state; for, in this respect, that is, in respect to the 
reserved powers, the state is as sovereign and independent as the 
general government. And if the means and instrumentalities em¬ 
ployed by that government to carry into operation the powers 
granted to it are, necessarily, and, for the sake of self-preservation,, 
exempt from taxation by the states, why are not those of the states 
depending upon their reserved powers, for like reasons, equally ex¬ 
empt from federal taxation? Their unimpaired existence in the 
one case is as essential as in the other. It is admitted that there is 
no express provision in the Constitution that prohibits the general 
government from taxing the means and instrumentalities of the 
states, nor is there any prohibiting the states from taxing the 
means and instrumentalities of that government. In both cases the 
exemption rests upon necessary implication, and is upheld by the 
great law of self-preservation; as any government, whose means, 
employed in conducting its operations, if subject to the control of 


282 


POWER OP TAXATION 


another and distinct government, can exist only at the mercy of 
that government. Of what avail are these means if another power 
may tax them at discretion ? ^ * 

Judgment affirmed. 

[BradIvEy, J., gave a dissenting opinion.] 


CALIFORNIA v. CENTRAL PACIFIC RAILROAD COM¬ 
PANY (1888) 127 U. S. 1, 40, 41, 8 Sup. Ct. 1073, 1080, 32 L. Ed. 
150, Mr. Justice Bradley (holding invalid a tax levied by California 
upon franchises to construct and operate a railroad conferred by 
act of Congress upon a California corporation) : 

‘'Assuming, then, that the Central Pacific Railroad Company has 
received the important franchises referred to by grant of the Unit¬ 
ed States, the question arises whether they are legitimate subjects 
of taxation by the state. They were granted to the company for 
national purposes, and to subserve national ends. It seems very 
clear that the state of California can neither take them away, nor 
destroy nor abridge them, nor cripple them by onerous burdens. 
Can it tax them? It may undoubtedly tax outside visible property 
of the company, situated with the state. That is a diflferent thing. 
But may it tax franchises which are the grant of the United States? 
In our judgment, it cannot. What is a franchise? Under the' 
English law, Blackstone defines it as ‘a royal privilege, or branch 
of the king’s prerogative, subsisting in the hands of a subject.’ 2 
Comm. 37. Generalized, and divested of the special form which it 
assumes under a monarchical government based on feudal tradi¬ 
tions, a franchise is a right, privilege, or power of public concern, 
which ought not to be exercised by private individuals at their mere 
will and pleasure, but should be reserved for public control and ad¬ 
ministration, either by the government directly, or by public agents, 
acting under such conditions and regulations as the government 
may impose in the public interest, and for the public security. Such 
rights and powers must exist under every form of society. They 
are always educed by the laws and customs of the community. Un¬ 
der our system, their existence and disposal are under the control 
of the legislative department of the government, and they cannot be 
assumed or exercised without legislative authority. No private per¬ 
son can establish a public highway or a public ferry or railroad, 
or charge tolls for the use of the same, without authority from the 
legislature, direct or derived. These are franchises. No private 
person can take another’s property, even for a public use, without 
such authority; which is the same as to say that the right of emi¬ 
nent domain can only be exercised by virtue of a legislative grant. 
This is a franchise. No persons can make themselves a body cor¬ 
porate and politic without legislative authority. Corporate capacity 
is a franchise. The list might be continued indefinitely. 



INDEPENDENCE OP FEDERAL AND STATE GOVERNMENTS 283 

“In view of this description of the nature of a franchise, how can 
it be possible that a franchise granted by Congress can be subject 
to taxation by a state without the consent of Congress? Taxation 
is a burden, and may be laid so heavily as to destroy the thing 
taxed, or render it valueless. As Chief Justice Marshall said in 
McCulloch V. Maryland, 4 Wheat. 316, 4 L. Ed. 579, The power 
to tax involves the power to destroy.^ Recollecting the funda¬ 
mental principle that the Constitution, laws, and treaties of the 
United States are the supreme law of the land, it seems to us almost 
absurd to contend that a power given to a person or corporation 
by the United States may be subjected to taxation by a state. The 
power conferred emanates from and is a portion of the power of 
the government that confers it. To tax it is not only derogatory to 
the dignity, but subversive of the powers, of the government, and 
repugnant to its paramount sovereignty.’’ 


RAILROAD COMPANY v. PENISTON. 

(Supreme Court of United States, 1873. 18 Wall. 5, 21 L. Ed. 787.) 

[Appeal from federal Circuit Court for Nebraska. In 1862 Con¬ 
gress incorporated the Union Pacific Railroad Company to build a 
railroad between the Missouri river and the Pacific coast, which, as 
constructed, crossed Nebraska from east to west. Nebraska be¬ 
came a state in 1867, and in 1869 taxed all of the property of the 
said railroad within the state. The company resisted that portion 
of the tax imposed in Lincoln county, and its bill for an injunc¬ 
tion was denied in the above court. Other facts appear in the opin¬ 
ion.] 

Mr. Justice Strong. * * * Before the adoption of the Con¬ 

stitution of the United States, each of the states possessed un¬ 
limited power to tax, either directly or indirectly, all persons and 
property within [its] jurisdiction. * * 'j'^e Constitution con¬ 

tains no express restriction of this power other than a prohibition 
to lay any duty of tonnage, or any impost or duty on imports or 
exports, except what may be absolutely necessary for executing the 
state’s inspection laws. ^ ^ * 

There are, we admit, certain subjects of taxation which are with¬ 
drawn from the power of the states, not by any direct or express 
provision of the federal Constitution, but by what may be regarded 
as its necessary implications. They grow out of our complex sys¬ 
tem of government, and out of the fact that the authority of the 
national government is legitimately exercised within the states. 
While it is true that government cannot exercise its power of taxa¬ 
tion so as to destroy the state governments, or embarrass their law¬ 
ful action, it is equally true that the states may not levy taxes the 
direct effect of which shall be to hinder the exercise of any powers 



284 


POWER OF TAXATION 


which belong to the national government. The Constitution con¬ 
templates that none of those powers may be restrained by state 
legislation. But it is often a difficult question whether a tax im¬ 
posed by a state does in fact invade the domain of the general gov¬ 
ernment, or interfere with its operations to such an extent, or in 
such a manner as to render it unwarranted. It cannot be that a 
state tax which remotely affects the efficient exercise of a federal 
power is for that reason alone inhibited by the Constitution. To 
hold that would be to deny to the states all power to tax persons or 
property. Every tax levied by a state withdraws from the reach of 
federal taxation a portion of the property from which it is taken, 
and to that extent diminishes the subject upon which federal taxes 
may be laid. The states are, and they must ever be, coexistent with 
the national government. Neither may destroy the other. Hence 
the federal Constitution must receive a practical construction. Its 
limitations and its implied prohibitions must not be extended so far 
as to destroy the necessary powers of the states, or prevent their 
efficient exercise. 

These observations are directly applicable to the case before us. 
It is insisted on behalf of the plaintiffs that the tax of which they 
complain has been laid upon an agent of the general government 
constituted and organized as an instrument to carry into effect the 
powers vested in that government by the Constitution, and it is 
claimed that such an agency is not subject to state taxation. That 
the Union Pacific Railroad Company was created to subserve, in 
part at least, the lawful purposes of the national government; that 
it was authorized to construct and maintain a railroad and tele¬ 
graph line along the prescribed route, and that grants were made 
to it, and privileges conferred upon it, upon condition that it should 
at all times transmit despatches over its telegraph line, and trans¬ 
port mails, troops, and munitions of war, supplies and public stores, 
upon the railroad for the government, whenever required to do so 
by any department thereof, and that the government should at all 
times have the preference in the use of the same for all the purposes 
aforesaid, must be conceded. Such are the plain provisions of its 
charter. * ^ ^ 

The charter also contains other provisions looking to a supervi¬ 
sion and control of the road and telegraph line, with the avowed 
purpose of securing to the government the use and benefit thereof 
for postal and military purposes. It is unnecessary to mention 
these in detail. They all look to a purpose of Congress to secure an 
agency competent and under obligation to perform certain offices 
for the general government. Notwithstanding this, the railroad 
and the telegraph line are neither in whole nor in part the property 
of the government. The ownership is in the complainants, a pri¬ 
vate corporation, though existing for the performance of public 
duties. The government owns none of its stock, and though it may 


INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 285 

appoint two of the directors, the right thus to appoint is plainly re¬ 
served for the sole purpose of enabling the enforcement of the en¬ 
gagements which the company assumed, the engagements to which 
we have already alluded. 

Admitting, then, fully, as we do, that the company is an agent of 
the general government, designed to be employed, and actually em¬ 
ployed, in the legitimate service of the government, both military 
and postal, does it necessarily follow that its property is exempt 
from state taxation? 

In Thomson v. Union Pacific Railway Company, 9 Wall. 579, 19 
L. Ed. 792, after much consideration, we held that the property of 
that company was not exempt from state taxation, though their rail¬ 
road was part of a system of roads constructed under the direction 
and authority of the United States, and largely for the uses and pur¬ 
poses of the general government. ♦ * hs ^ state tax upon the 

property of the company, its roadbed, rolling-stock, and personalty 
in general, was ruled by this court not to be in conflict with the fed¬ 
eral Constitution. It may, therefore, be considered as settled that 
no constitutional implications prohibit a state tax upon the property 
of an agent of the government merely because it is the property of 
such an agent. A contrary doctrine would greatly embarrass the 
states in the collection of their necessary revenue without any cor¬ 
responding advantage to the United States. A very large propor¬ 
tion of the property within the states is employed in execution of 
the powers of the government. It belongs to governmental agents, 
and it is not only used, but it is necessary for their agencies. Unit¬ 
ed States mails, troops, and munitions of war are carried upon 
almost every railroad. Telegraph lines are employed in the national 
service. So are steamboats, horses, stage-coaches, foundries, ship¬ 
yards, and multitudes of manufacturing establishments. They are 
the property of natural persons, or of corporations, who are instru¬ 
ments or agents of the general government, and they are the hands 
by which the objects of the government are attained. Were they 
exempt from liability to contribute to the revenue of the states 
it is manifest the state governments would be paralyzed. While it 
is of the utmost importance that all the powers vested by the Con¬ 
stitution of the United States in the general government should be 
preserved in full efficiency, and while recent events have called for 
the most unembarrassed exercise of many of those powers, it has 
never been decided that state taxation of such property is impliedly 
prohibited. 

It is, however, insisted that the case of Thomson v. Union Pacific 
Railroad Company differs from the case we have now in hand in the 
fact that it was incorporated by the territorial Legislature and the 
Legislature of the state of Kansas, while these complainants were 
incorporated by Congress. We do not perceive that this presents 
any reason for the application of a rule different from that which 


286 


POWER OP TAXATION 


was applied in the former case. ^ * The United States have 

no more ownership of the road authorized by Congress than they 
had in the road authorized by Kansas. If the taxation of either is 
unlawful, it is because the states cannot obstruct the exercise of 
national powers. As was said in Weston v. Charleston, 2 Pet. 467, 
7 L. Ed. 481, they cannot, by taxation or otherwise, ‘^retard, im¬ 
pede, burden, or in any manner control the operation of the consti¬ 
tutional laws enacted by Congress to carry into execution the pow¬ 
ers vested in the general government.” The implied inhibition, if 
any exists, is against such obstruction, and that must be the same 
whether the corporation whose property is taxed was created by 
Congress or by a state Legislature. 

Nothing, we think, in the past decisions of this court is inconsist¬ 
ent with the opinions we now hold. * * In [McCulloch v. 

Maryland, ante, p, 274] the tax held unconstitutional was laid upon 
the notes of the bank’. The institution was prohibited from issuing 
notes at all except upon stamped paper furnished by the state, and 
to be paid for on delivery, the stamp upon each note being propor¬ 
tioned to its denomination. The tax, therefore, was not upon any 
property of the bank, but upon one of its operations, in fact, upon 
its right to exist as created. It was a direct impediment in the way 
of a governmental operation performed through the bank as an 
agent. It was a very different thing, both in its nature and effect, 
from a tax on the property of the bank. No wonder, then, that it 
was held illegal. But even in that case the court carefully limited 
the effect of the decision. It does not extend, said the Chief Justice, 
to a tax paid by the real property of the bank, in common with the 
other real property in the state, nor to a tax imposed on the interest 
which the citizens of Maryland may hold in the institution, in com¬ 
mon with the other property of the same description throughout 
the state. * * * 

In Osborn v. Bank [9 Wheat. 738, 6 L. Ed. 204] the tax held um 
constitutional was a tax upon the existence of the bank—upon its 
right to transact business within the state of Ohio, ^ ^ ^ but 

at the same time it was declared by the court that the local property 
of the bank might be taxed, and, as in McCulloch v. Maryland, a 
difference was pointed out between a tax upon its property and one 
upon its action. ^ ^ ^ This distinction, so clearly drawn in the 

earlier decisions, between a tax on the property of a governmental 
agent, and a tax upon the action of such agent, or upon his right 
to be, has ever since been recognized. All state taxation which 
does not impair the agent’s efficiency in the discharge of his duties 
to the government has been sustained when challenged, and a tax 
upon his property generally has not been regarded as beyond the 
power of a state to impose. * * * 

It is, therefore, manifest that exemption of federal agencies from 
state taxation is dependent, not upon the nature of the agents, or 


INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 287 

Upon the mode of their constitution, or upon the fact that they are 
agents, but upon the effect of the tax; that is, upon the question 
whether the tax does in truth deprive them of power to serve the 
government as they were intended to serve it, or does hinder the 
efficient exercise of their power. A tax upon their property has no 
such necessary effect. It leaves them free to discharge the duties 
they have undertaken to perform. A tax upon their operations is 
a direct obstruction to the exercise of federal powers. 

In this case the tax is laid upon the property of the railroad com¬ 
pany precisely as was the tax complained of in Thomson v. Union 
Pacific. It is not imposed upon the franchises or the right of the 
company to exist and perform the functions for which it was 
brought into being. Nor is it laid upon any act which the company 
has been authorized to do. It is not the transmission of despatches, 
nor the transportation of United States mails, or troops, or muni¬ 
tions of war, that is taxed, but it is exclusively the real and personal 
property of the agent, taxed in common with all other property in 
the state of a similar character. It is impossible to maintain that 
this is an interference with the exercise of any power belonging to 
the general government, and if it is not, it is prohibited by no con¬ 
stitutional implication. * * * 

Decree affirmed. 

[SwAYNK, J., gave a concurring opinion. Bradley, J., gave a dis¬ 
senting opinion, in which Field, J., concurred. Hunt, J., also dis¬ 
sented.] 


FLINT V. STONE TRACY CO. (1911) 220 U. S. 107, 152, 153, 
155-158, 171, 172, 31 Sup. Ct. 342, 349, 55 L. Ed. 389, Ann. Cas. 
1912B, 1312, Mr. Justice Day (upholding a federal excise tax, 
equivalent to 1 per cent, of its net income above $5,000, levied upon 
the doing of business in the United States by any corporation or 
joint stock company) : 

“It is next contended that the attempted taxation is void be¬ 
cause it levies a tax upon the exclusive right of a state to grant 
corporate franchises, because it taxes franchises which are the 
creation of the state in its sovereign right and authority. This 
proposition is rested upon the implied limitation upon the powers 
of national and state governments to take action which encroaches 
upon or cripples the exercise of the exclusive power of sovereignty 
in the other. It has been held in a number of cases that the state 
cannot tax franchises created by the United States or the apncies 
or corporations which are created for the purpose of carrying out 
governmental functions of the United States. McCulloch v. Mary¬ 
land, 4 Wheat. 316, 4 L. Ed. 579; Osborn v. Bank of United 
States, 9 Wheat. 738, 6 L. Ed. 204; Union P. R. Co. v. Peniston, 



288 


POWER OF TAXATION 


18 Wall. 5, 21 L. Ed. 787; California v. Central P. R. Co., 127 U. 
S. 1, 32 E. Ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. Ct. 1073. 

“An examination of these cases will show that in each case 
where the tax was held invalid, the decision rested upon the propo¬ 
sition that the corporation was created to carry into effect powers 
conferred upon the federal government in its sovereign capacity, 
and the attempted taxation was an interference with the effectual 
exercise of such powers. 

“In Osborn v. Bank of United States, supra, a leading case upon 
the subject, whilst it was held that the Bank of the United States 
was not a private corporation, but a public one, created for nation¬ 
al purposes, and therefore beyond the taxing power of the state. 
Chief Justice Marshall, in delivering the opinion of the court, con¬ 
ceded that if the corporation had been originated for the manage¬ 
ment of an individual concern, with private trade and profit for 
its great end and principal object, it might be taxed by the state. 
* * * [Here follows a quotation from this case, 9 Wheat, at 

859, 860.] 

“While the tax in this case, as we have construed the statute, is 
imposed upon the exercise of the privilege of doing business in a 
corporate capacity, as such business is done under authority of 
state franchises, it becomes necessary to consider in this connec¬ 
tion the right of the federal government to tax the activities of 
private corporations which arise from the exercise of franchises 
granted by the state in creating and conferring powers upon such 
corporations. We think it is the result of the cases heretofore de¬ 
cided in this court, that such business activities, though exercised 
because of state-created franchises, are not beyond the taxing 
power of the United States. * * ^ [Citing Mich. C. Ry. v. 

Slack, 100 U. S. 595, 25 L. Ed. 647; U. S. v. Erie Ry., 106 U. S. 
327, 1 Sup. Ct. 223, 27 L. Ed. 151; Spreckels Ref. Co. v. McClain, 
192 U. S. 397, 24 Sup. Ct. 376, 48 U. Ed. 496.] The question was 
raised and decided in the case of Veazie Bank v. Fenno, 8 Wall. 
533, 19 E. Ed. 482. In that well-known case a tax upon the notes 
of a state bank issued for circulation was sustained. Mr. Chief 
Justice Chase, in the course of the opinion, said: 

“ Ts it, then, a tax on a franchise granted by a state, which 
Congress, upon any principle exempting the reserved powers of 
the states from impairment by taxation, must be held to have no 
authority to lay and collect? 

“ ‘We do not say that there may not be such a tax. It may be 
admitted that the reserved rights of the states, such as the right 
to pass laws, to give effect to laws through executive action, to 
administer justice through the courts, and to employ all necessary 
agencies for legitimate purposes of state government, are not 
proper subjects of the taxing power of Congress. But it cannot be 
admitted that franchises granted by a state are necessarily exempt 


INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 289 

from taxation; for franchises are property, often very valuable 
and productive property; and when not conferred for the purpose 
of giving effect to some reserved power of a state, seem to be as 
properly objects of taxation as any other property. 

“ ^But in the case before us the object of taxation is not the fran¬ 
chise of the bank, but property created, or contracts made and is¬ 
sued under the franchise, or power to issue bank bills. A railroad 
company, in the exercise of its corporate franchises, issues freight 
receipts, bills of lading, and passenger tickets; and it cannot be 
doubted that the organization of railroads is quite as important to 
the state as the organization of banks. But it will hardly be ques¬ 
tioned that these contracts of the company are objects of taxation 
within the powers of Congress, and not exempted by any relation 
to the state which granted the charter of the railroad. And it 
seems difficult to distinguish the taxation of notes issued for cir¬ 
culation from the taxation of these railroad contracts. Both de¬ 
scriptions of contracts are means of profit to the corporations 
which issue them; and both, as we think, may properly be made 
contributory to the public revenue.’ (Pp. 547, 548.) 

“It is true that the decision in the Veazie Bank Case was also 
placed, in a measure, upon the authority of the United States to 
control the circulating medium of the country, but the force of 
the reasoning which we have quoted has not been denied or de¬ 
parted from. * * * [Here follow references to Thomas v. U. 

S., 192 U. S. 363, 24 Sup. Ct. 305, 48 L. Ed. 481, and Nicol v. Ames, 
173 U. S. 509, 19 Sup. Ct. 522, 43 L. Ed. 786.] 

“When the Constitution was framed, the right to lay excise 
taxes was broadly conferred upon the Congress. At that time 
very few corporations existed. If the mere fact of state incorpora¬ 
tion, extending now to nearly all branches of trade and industry, 
could withdraw the legitimate objects of federal taxation from the 
exercise of the power conferred, the result would be to exclude 
the national government from many objects upon which indirect 
taxes could be constitutionally imposed. Let it be supposed that 
a group of individuals, as partners, were carrying on a business 
upon which Congress concluded to lay an excise tax. If it be true 
that the forming of a state corporation would defeat this purpose, 
by taking the necessary steps required by the state law to create 
a corporation and carrying on the business under rights granted 
by a state statute, the federal tax would become invalid and that 
source of national revenue be destroyed, except as to the business 
in the hands of individuals or partnerships. It cannot be supposed 
that it was intended that it should be within the power of individ¬ 
uals acting under state authority to thus impair and limit the ex¬ 
ertion of authority which may be essential to national existence. 

“In this connection South Carolina v. United States, 199 U. S. 

Hall Cases Const.L.—19 


290 


POWER OF TAXATION 


437, 461, 50 L. Ed. 261, 26 Sup. Ct. 110, 4 Ann. Cas. 737, is im¬ 
portant. In that case it was held that the agents of the state gov¬ 
ernment, carrying on the business of selling liquor under state 
authority, were liable to pay the internal revenue tax imposed by 
the federal government. In the opinion previous cases in this 
court were reviewed, and the rule to be deduced therefrom stated 
to be that the exemption of state agencies and instrumentalities 
from national taxation was limited to those of a strictly govern¬ 
mental character, and did not extend to those used by the state in 
carrying on business of a private character. 

“The cases unite in exempting from federal taxation the means 
and instrumentalities employed in carrying on the governmental 
operations of the state. The exercise of such rights as the estab¬ 
lishment of a judiciary, the employment of officers to administer 
and execute the laws, and similar governmental functions, cannot 
be taxed by the federal government. The Collector v. Day, 11 
Wall. 113, 20 T. Ed. 122; United States v. Baltimore & O. R. Co., 
17 Wall. 322, 21 L. Ed. 597; Ambrosini v. United States, 187 U. 
S. 1, 47 E. Ed. 49, 23 Sup. Ct. 1, 12 Am. Crim. Rep. 699. 

“But this limitation has never been extended to the exclusion of 
the activities of a merely private business from the federal taxing 
power, although the power to exercise them is derived from an 
act of incorporation by one of the states. We therefore reach the 
conclusion that the mere fact that the business taxed is done in 
pursuance of authority granted by a state in the creation of pri¬ 
vate corporations does not exempt it from the exercise of federal 
authority to levy excise taxes upon such privileges. * * * 

“We come to the question. Is a so-called public-service corpo¬ 
ration, such as the Coney Island and Brooklyn Railroad Company, 
in case No. 409, and the Interborough Rapid Transit Company, 
No. 442, exempted from the operation of this statute? In the case 
of South Carolina v. United States, 199 U. S. 437, 50 E. Ed. 261, 26 
Sup. Ct. 110, 4 Ann. Cas. 737, this court held that when a state, 
acting within its lawful authority, undertook to carry on the liquor 
business, it did not withdraw the agencies of the state, carrying on 
the traffic, from the operation of the internal revenue laws of the 
United States. If a state may not thus withdraw from the opera¬ 
tion of a federal taxing law a subject-matter of such taxation, it 
is difficult to see how the incorporation of companies whose serv¬ 
ice, though of a public nature, is, nevertheless, with a view to 
private profit, can have the effect of denying the federal right to 
reach such properties and activities for the purposes of revenue. 

“It is no part of the essential governmental functions of a state 
to provide means of transportation, supply artificial light, water, 
and the like. These objects are often accomplished through the 
medium of private corporations, and though the public may derive 
a benefit from such operations, the companies carrying on such 


JURISDICTION AND PUBLIC PURPOSE 


291 


enterprises are nevertheless private companies, whose business is 
prosecuted for private emolument and advantage. For the pur¬ 
pose of taxation they stand upon the same footing as other pri¬ 
vate corporations upon which special franchises have been con¬ 
ferred. 

The true distinction is between the attempted taxation of those 
operations of the states essential to the execution of its govern¬ 
mental functions, and which the state can only do itself, and those 
activities which are of a private character. The former, the United 
States may not interfere with by taxing the agencies of the state 
in carrying out its purposes; the latter, although regulated by the 
state, and exercising delegated authority, such as the right of emi¬ 
nent domain, are not removed from the field of legitimate federal 
taxation. Applying this principle, we are of opinion that the so- 
called public-service corporations represented in the cases at bar 
are not exempt from the tax in question/* 


II. Jurisdiction and Public Purpose * 


UNION REFRIGERATOR TRANSIT CO. v. KENTUCKY. 

(Supreme Court of United States, 1905. 199 U. S. 194, 26 Sup. Ct 36, 50 L. 

Ed. 150, 4 Ann. Cas. 493.) 

[Error to the Court of Appeals of Kentucky. The defendant 
company, a Kentucky corporation, was sued by that state for the 
ad valorem property taxes assessed for certain years upon 2,0(X) 
freight cars owned by it and rented to shippers, who took pos¬ 
session of them from time to time at Milwaukee, Wis., and used 
them to carry freight in various parts of the United States, Can¬ 
ada, and Mexico. According to a system of averages based upon 
gross earnings, only from 30 to 70 of such cars were employed 
yearly in Kentucky. The state Court of Appeals directed a judg¬ 
ment against the company for taxes upon all of its cars.] 

Mr. Justice Brown. In this case the question is directly pre¬ 
sented whether a corporation organized under the laws of Ken¬ 
tucky is subject to taxation upon its tangible personal property 
permanently located in other states, and employed there in the 
prosecution of its business. Such taxation is charged to be a vio¬ 
lation of the due process of law clause of the fourteenth amend¬ 
ment. 

Section 4020 of the Kentucky Statutes, under which this assess¬ 
ment was made, provides that “all real and personal estate within 

2 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 160, 161, 163, 
164. 




292 


POWER OP TAXATION 


this state, and all personal estate of persons residing in this state, 
and of all corporations organized under the laws of this state, 
whether the property be in or out of this state, * * ♦ shall be 

subject to taxation.” * * * 

The power of taxation, indispensable to the existence of every 
civilized government, is exercised upon the assumption of an 
equivalent rendered to the taxpayer in the protection of his per¬ 
son and property, in adding to the value of such property, or in 
the creation and maintenance of public conveniences in which he 
shares,—such, for instance, as roads, bridges, sidewalks, pave¬ 
ments, and schools for the education of his children. If the tax¬ 
ing power be in no position to render these services, or otherwise 
to benefit the person or property taxed, and such property be 
wholly within the taxing power of another state, to which it may 
be said to owe an allegiance, and to which it looks for protection, 
the taxation of such property within the domicil of the owner 
partakes rather of the nature of an extortion than a tax, and has 
been repeatedly held by this court to be beyond the power of the 
legislature, and a taking of property without due process of law. 
Northern C. R. Co. v. Jackson, 7 Wall. 262, 19 L. Ed. 88; State 
Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L. Ed. 179; Tappan 
V. Merchants’ Nat. Bank, 19 Wall. 490-499, 22 L. Ed. 189-193; 
Delaware, L. & W. R. Co. v. Pennsvlvania, 198 U. S. 341, 358, 49 
E. Ed. 1077, 1083, 25 Sup. Ct. 669. 'in Chicago, B. & Q. R. Co. v. 
Chicago, 166 U. S. 226, 41 L. Ed. 979, 17 Sup. Ct. 581, it was held, 
after full consideration, that the taking of private property with¬ 
out compensation was a denial of due process within the four¬ 
teenth amendment. See also Davidson v. New Orleans, 96 U. S. 
97, 102, 24 L. Ed. 616, 618; Missouri P. R. Co. v. Nebraska, 164 
U. S. 403, 417, 41 L. Ed. 489, 495, 17 Sup. Ct. 130; Mt. Hope Ceme¬ 
tery V. Boston, 158 Mass. 509, 519, 35 Am. St. Rep. 515, 33 N. E. 
695. 

Most modern legislation upon this subject has been directed (1) 
to the requirement that every citizen shall disclose the amount of 
his property subject to taxation, and shall contribute in propor¬ 
tion to such amount; and (2) to the avoidance of double taxation. 
As said by Adam Smith in his Wealth of Nations, book V, chap. 2, 
pt. 2, p. 371: “The subjects of every state ought to contribute to¬ 
wards the support of the government as nearly as possible in pro¬ 
portion to their respective abilities; that is, in proportion to the 
revenue which they respectively enjoy under the protection of the 
state. The expense of government to the individuals of a great 
nation is like the expense of management to the joint tenants of 
a great estate, who are all obliged to contribute in proportion to 
their respective interests in the estate. In the observation or 
neglect of this maxim consists what is called the equality or in¬ 
equality of taxation.” 


JURISDICTION AND PUBLIC PURPOSE 


293 


But notwithstanding the rule of uniformity lying at the basis 
of every just system of taxation, there are doubtless many individ¬ 
ual cases where the weight of a tax falls unequally upon the own¬ 
ers of the property taxed. This is almost unavoidable under every 
system of direct taxation. But the tax is not rendered illegal by 
such discrimination. Thus, every citizen is bound to pay his pro¬ 
portion of a school tax, though he have no children; of a police 
tax, though he have no buildings or personal property to be guard¬ 
ed; or of a road tax, though he never use the road. In other 
words, a general tax cannot be dissected to show that, as to cer¬ 
tain constituent parts, the taxpayer receives no benefit. Even in 
case of special assessments imposed for the improvement of prop¬ 
erty within certain limits, the fact that it is extremely doubtful 
whether a particular lot can receive any benefit from the improve¬ 
ment does not invalidate the tax with respect to such lot. Kelly 
V. Pittsburgh, 104 U. S. 78, 26 L. Ed. 658; Amesbury Nail Fac¬ 
tory Co. V. Weed, 17 Mass. 53; Thomas v. Gay, 169 U. S. 264, 42 
E. Ed. 740, 18 Sup. Ct. 340; Louisville & N. R. Co. v. Barber 
Asphalt Paving Co., 197 U. S. 430, 49 L. Ed. 819, 25 Sup. Ct. 466. 
Subject to these individual exceptions, the rule is that in classify¬ 
ing property for taxation, some benefit to the property taxed is a 
controlling consideration, and a plain abuse of this power will 
sometimes justify a judicial interference. Norwood v. Baker, 172 
U. S. 269, 43 L. Ed. 443, 19 Sup. Ct. 187. It is often said protec¬ 
tion and payment of taxes are correlative obligations. 

It is also essential to the validity of a tax that the property shall 
be within the territorial jurisdiction of the taxing power. Not 
only is the operation of state laws limited to persons and property 
within the boundaries of the state, but property which is wholly 
and exclusively within the jurisdiction of another state receives 
none of the protection for which the tax is supposed to be the com¬ 
pensation. This rule receives its most familiar illustration in the 
cases of land, which, to be taxable, must be within the limits of 
the state. Indeed, we know of no case where a legislature has as¬ 
sumed to impose a tax upon land within the jurisdiction of another 
state; much less where such action has been defended by any 
court. It is said by this court in the State Tax on Foreign-Held 
Bonds Case, 15 Wall. 300-319, 21 L. Ed. 179-187, that no adjudica¬ 
tion should be necessary to establish so obvious a proposition as 
that property lying beyond the jurisdiction of a state is not a sub¬ 
ject upon which her taxing power can be legitimately exercised. 

The argument against the taxability of land within the jurisdic¬ 
tion of another state applies with equal cogency to tangible per¬ 
sonal property beyond the jurisdiction. It is not only beyond the 
sovereignty of the taxing state, but does not and cannot receive 
protection under its laws. True, a resident owner may receive an 
income from such property, but the same may be said of real es- 


294 


POWER OF TAXATION 


tate within a foreign jurisdiction. Whatever be the rights of the 
state with respect to the taxation of such income, it is clearly be¬ 
yond its power to tax the land from which the income is derived. 
As we said in Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385- 
396, 47 L. Ed. 513-518, 23 Sup. Ct. 463: ‘While the mode, form, 
and extent of taxation are, speaking generally, limited only by the 
wisdom of the legislature, that power is limited by a principle in¬ 
hering in the very nature of constitutional government,—namely, 
that the taxation imposed must have relation to a subject within 
the jurisdiction of the taxing government.” See also McCulloch 
V. Maryland, 4 Wheat. 316-429, 4 L. Ed. 579-607; Hays v. Pacific 
Mail S. S. Co., 17 How. 596-599, 15 L. Ed. 254, 255; St. Louis v. 
Wiggins Ferry Co., 11 Wall. 423, 429, 431, 20 L. Ed. 192, 194, 195; 
Morgan v. Parham, 16 Wall. 471-476, 21 L. Ed. 303, 304. 

Respecting this, there is an obvious distinction between tangible 
and intangible property, in the fact that the latter is held secretly; 
that there is no method by which its existence or ownership can 
be ascertained in the state of its situs except, perhaps, in the case 
of mortgages or shares of stock. So if the owner be discovered, 
there is no way by which he can be reached by process in a state 
other than that of his domicil, or the collection of the tax other¬ 
wise enforced. In this class of cases the tendency of modern au¬ 
thorities is to apply the maxim “mobilia sequuntur personam,” 
and to hold that the property may be taxed at the domicil of the 
owner as the real situs of the debt, and also, more particularly in 
the case of mortgages, in the state where the property is retained. 
Such have been the repeated rulings of this court. Tappan v. Mer¬ 
chants’ Nat. Bank, 19 Wall. 490, 22 L. Ed. 189; Kirtland v. Hotch¬ 
kiss, 100 U. S. 491, 25 L. Ed. 558; Bonaparte v. Appeal Tax Court, 
104 U. S. 592, 26 L. Ed. 845; Sturges v. Carter, 114 U. S. 511, 29 
L. Ed. 240, 5 Sup. Ct. 1014; Kidd v. Alabama, 188 U. S. 730, 47 
L. Ed. 669, 23 Sup. Ct. 401; Blackstone v. Miller, 188 U. S. 189, 
47 L. Ed. 439, 23 Sup. Ct. 277. 

If this occasionally results in double taxation, it much oftener 
happens that this class of property escapes altogether. In the 
case of intangible property, the law does not look for absolute 
equality, but to the much more practical consideration of collect¬ 
ing the tax upon such property, either in the state of the domicil or 
the situs. Of course, we do not enter into a consideration of the 
question, so much discussed by political economists, of the double 
taxation involved in taxing the property from which these securi¬ 
ties arise, and also the burdens upon such property, such as mort¬ 
gages, shares of stock, and the like,—the securities themselves. 

The arguments in favor of the taxation of intangible property at 
the domicil of the owner have no application to tangible property. 
The fact that such property is visible, easily found, and difficult to 
conceal, and the tax readily collectible, is so cogent an argument 


JURISDICTION AND PUBLIC PURPOSE 


295 


for its taxation at its situs, that of late there is a general consensus 
of opinion that it is taxable in the state where it is permanently 
located and employed, and where it receives its entire protection, 
irrespective of the domicil of the owner. We have, ourselves, held 
in a number of cases that such property, permanently located in 
a state other than that of its owner, is taxable there. Brown v. 
Houston, 114 U. S. 622, 29 L. Ed. 257, 5 Sup. Ct. 1091; Coe v. 
Errol, 116 U. S. 517, 29 E. Ed. 715, 6 Sup. Ct. 475; Pullman’s 
Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. Ed. 613, 3 
Interest. Com. R. 595, 11 Sup. Ct. 876. * * ^ 

[Here follows the citation of other federal cases and a discus¬ 
sion of various state decisions.] 

But there are two recent cases in this court which we think 
completely cover the question under consideration, and require the 
reversal of the judgment of the state court. The first of these is 
that of the Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385, 47 
L. Ed. 513, 23 Sup. Ct. 463. That was an action to recover certain 
taxes imposed upon the corporate franchise of the defendant com¬ 
pany, which was organized to establish and maintain a ferry be¬ 
tween Kentucky and Indiana. The defendant was also licensed 
by the state of Indiana. We held that the fact that such franchise 
had been granted by the commonwealth of Kentucky did not bring 
within the jurisdiction of Kentucky, for the purpose of taxation, 
the franchise granted to the same company by Indiana, and which 
we held to be an incorporeal hereditament, derived from and hav¬ 
ing its legal situs in that state. It was adjudged that such taxa¬ 
tion amounted to a deprivation of property without due process 
of law, in violation of the fourteenth amendment; as much so as 
if the state taxed the land owned by that company; and that the 
officers of the state had exceeded their power in taxing the whole 
franchise without making a deduction for that obtained from In¬ 
diana, the two being distinct, '‘although the enjoyment of both 
are essential to a complete ferry right for the transportation of 
persons and property across the river both ways.” 

The other and more recent case is that of the Delaware, L. & 
W. R. Co. V. Pennsylvania, 198 U. S. 341, 49 L. Ed. 1077, 25 Sup. 
Ct. 669. That was an assessment upon the capital stock of the 
railroad company, wherein it was contended that the assessor 
should have deducted from the value of such stock certain coal 
mined in Pennsylvania and owned by it, but stored in New York, 
there awaiting sale, and beyond the jurisdiction of the common¬ 
wealth at the time appraisement was made. This coal was taxable, 
and in fact was taxed, in the state where it rested for the purposes 
of sale at the time when the appraisement in question was made. 
Both this court and the supreme court of Pennsylvania had held 
that a tax on the corporate stock is a tax on the assets of the cor¬ 
poration issuing such stock. The two courts agreed in the gen- 


296 


POWER OF TAXATION 


eral proposition that tangible property permanently outside of the 
state, and having no situs within the state, could not be taxed. 
But they differed upon the question whether the coal involved was 
permanently outside of the state. In delivering the opinion it was 
said: “However temporary the stay of the coal might be in the 
particular foreign states where it was resting at the time of the 
appraisement, it was definitely and forever beyond the jurisdic¬ 
tion of Pennsylvania. And it was within the jurisdiction of the 
foreign states for purposes of taxation, and, in truth, it was there 
taxed. We regard this tax as, in substance and in fact, though not 
in form, a tax specifically levied upon the property of the corpora¬ 
tion, and part of that property is outside and beyond the jurisdic¬ 
tion of the state which thus assumes to tax it.’^ The decision in 
that case was really broader than the exigencies of the case under 
consideration require, as the tax was not upon the personal prop¬ 
erty itself, but upon the capital stock of a Pennsylvania corpora¬ 
tion, a part of which stock was represented by the coal, the value 
of which was held should have been deducted. 

The adoption of a general rule that tangible personal property 
in other states may be taxed at the domicil of the owner involves 
possibilities of an extremely serious character. Not only would it 
authorize the taxation of furniture and other property kept at 
country houses in other states or even in foreign countries, of 
stocks of goods and merchandise kept at branch establishments, 
when already taxed at the state of their situs, but of that enor¬ 
mous mass of personal property belonging to railways and other 
corporations, which might be taxed in the state where they are 
incorporated, though their charter contemplated the construction 
and operation of roads wholly outside the state, and sometimes 
across the continent; and when, in no other particular, they are 
subject to its laws and entitled to its protection. The propriety of 
such incorporations, where no business is done within the state, is 
open to grave doubt; but it is possible that legislation alone can 
furnish a remedy. * * ^ 

It is unnecessary to say that this case does not involve the ques¬ 
tion of the taxation of intangible personal property, or of inherit¬ 
ance or succession taxes, or of questions arising between different 
municipalities or taxing districts within the same state, which are 
controlled by different considerations. ^ ^ * 

Judgment reversed. 

[White, J., concurred in the result.] 

Mr. Justice Hoemes. It seems to me that the result reached by 
the court probably is a desirable one, but I hardly understand how 
it can be deduced from the fourteenth amendment; and as the 
Chiee Justice feels the same difficulty, I think it proper to say that 
my doubt has not been removed. 


JURISDICTION AND PUBLIC PURPOSE 


297 


LOAN ASSOCIATION v. TOPEKA. 

(Supreme Court of United States, 1875. 20 Wall. 655, 22 L. Ed. 455.) 

[Error to the federal Circuit Court for Kansas. The city of To¬ 
peka, Kansas, under statutory authority, issued $100,000 of bonds 
as a donation to the King Bridge Company to aid it in establishing 
a manufactory of iron bridges in that city. The plaintiff associa¬ 
tion of Cleveland, Ohio, sued Topeka in the federal Circuit Court 
for Kansas for the interest on some of these bonds owned by plain¬ 
tiff. The city demurred and received judgment, and a writ of error 
was taken. Other facts appear in the opinion.] 

Mr. Justice Mille^R. * * * [After declining to pass upon one 

of the grounds urged for invalidating the bonds under the Kansas 
constitution:] We find ample reason to sustain the demurrer on 
the second ground on which it is argued by counsel and sustained 
by the Circuit Court. That proposition is that the act authorizes 
the towns and other municipalities to which it applies, by issuing 
bonds or loaning their credit, to take the property of the citizen 
under the guise of taxation to pay.these bonds, and use it in aid 
of the enterprises of others which are not of a public character, 
thus perverting the right of taxation, which can only be exercised 
for a public use, to the aid of individual interest and personal pur¬ 
poses of profit and gain. 

The proposition as thus broadly stated is not new, nor is the 
question which it raises difficult of solution. If these municipal 
corporations, which are in fact subdivisions of the state, and which 
for many reasons are vested with quasi legislative powers, have 
a fund or other property out of which they can pay the debts which 
they contract, without resort to taxation, it may be within the 
power of the legislature of the state to authorize them to use it 
in aid of projects strictly private or personal, but which would 
in a secondary manner contribute to the public good; or where 
there is property or money vested in a corporation of the kind for 
a particular use, as public worship or charity, the legislature may 
pass laws authorizing them to make contracts in reference to this 
property, and incur debts payable from that source. 

But such instances are few and exceptional, and the proposition 
is a very broad one, that debts contracted by municipal corpora¬ 
tions must be paid, if paid at all, out of taxes which they may law¬ 
fully levy, and that all contracts creating debts to be paid in future, 
not limited to payment from some other source, imply an obliga¬ 
tion to pay by taxation. It follows that in this class of cases the 
right to contract must be limited by the right to tax, and if in 
the given case no tax can lawfully be levied to pay the debt, the 
contract itself is void for want of authority to make it. * * * 

We proceed to the inquiry whether such a power exists in the 


298 


POWER OF TAXATION 


legislature of the state of Kansas. ^ ^ ^ The theory of our 

government, state and national, is opposed to the deposit of un¬ 
limited power anywhere. The executive, the legislative, and the 
judicial branches of these governments are all of limited and defin¬ 
ed powers. 

There are limitations on such power which grow out of the 
essential nature of all free governments; implied reservations of 
individual rights, without which the social compact could not exist, 
and which are respected by all governments entitled to the name. 
No court, for instance, would hesitate to declare void a statute 
which enacted that A and B, who were husband and wife to each 
other, should be so no longer, but that A should thereafter be the 
husband of C, and B the wife of D; or which should enact that the 
homestead now owned by A should no longer be his, but should 
henceforth be the property of B. Whiting v. Fond du Lac, 25 
Wis. 188, 3 Am. Rep. 30; Cooley on Constitutional Limitations, 
129, 175, 487; Dillon on Municipal Corporations, § 587. 

Of all the powers conferred upon government that of taxation 
is most liable to abuse. Given a purpose or object for which tax¬ 
ation may be lawfully used, and the extent of its exercise is in its 
very nature unlimited. It is true that express limitation on the 
amount of tax to be levied or the things to be taxed may be im¬ 
posed by constitution or statute, but in most instances for which 
taxes are levied, as the support of government, the prosecution of 
war, the national defence, any limitation is unsafe. The entire 
resources of the people should in some instances be at the disposal 
of the government. 

The power to tax is, therefore, the strongest, the most pervading 
of all the powers of government, reaching directly or indirectly to 
all classes of the people. It was said by Chief Justice Marshall, in 
the case of McCulloch v. State of Maryland, 4 Wheat. 431, 4 L. 
Ed. 579, that the power to tax is the power to destroy. A striking 
instance of the truth of the proposition is seen in the fact that the 
existing tax of ten per cent, imposed by the United States on the 
circulation of all other banks than the national banks, drove out 
of existence every state bank of circulation within a year or two 
after its passage. This power can as readily be employed against 
one class of individuals and in favor of another, so as to ruin the 
one class and give unlimited wealth and prosperity to the other, if 
there is no implied limitation of the uses for which the power may 
be exercised. 

To lay with one hand the power of the government on the prop¬ 
erty of the citizen, and with the other to bestow it upon favored 
individuals to aid private enterprises and build up private fortunes, 
is none the less a robbery because it is done under the forms of 
law and is called taxation. This is not legislation. It is a decree 
under legislative forms. 


JURISDICTION AND PUBLIC PURPOSE 


299 


Nor is it taxation. A “tax,” says Webster’s Dictionary, “is a 
rate or sum of money assessed on the person or property of a 
citizen by government for the use of the nation or state.” “Taxes 
are burdens or charges imposed by the legislature upon persons or 
property to raise money for public purposes.” Cooley on Consti¬ 
tutional Limitations, 479. Coulter, J., in Northern Liberties v. 
St. John’s Church, 13 Pa. 104 (see also Pray v. Northern Liberties, 
31 Pa. 69; Matter of Mayor of New York, 11 Johns. [N. Y.] 77; 
Camden v. Allen, 26 N. J. Law, 398; Sharpless v. Mayor of Phila¬ 
delphia, 21 Pa. 147, 59 Am. Dec. 759; Hanson v. Vernon, 27 Iowa, 
47, 1 Am. Rep. 215; Whiting v. Fond du Lac, 25 Wis. 188, 3 Am. 
Rep. 30), says, very forcibly, “I think the common mind has every¬ 
where taken in the understanding that taxes are a public imposi¬ 
tion, levied by authority of the government for the purpose of 
carrying on the government in all its machinery and operations— 
that they are imposed for a public purpose.” 

We have established, we think, beyond cavil that there can be 
no lawful tax which is not laid for a public purpose. It may not 
be easy to draw the line in all cases so as to decide what is a 
public purpose in this sense and what is not. 

It is undoubtedly the duty of the legislature which imposes or 
authorizes municipalities to impose a tax to see that it is not to be 
used for purposes of private interest instead of a public use, and 
the courts can only be justified in interposing when a violation of 
this principle is clear and the reason for interference cogent. And 
in deciding whether, in the given case, the object for which the 
taxes are assessed falls upon the one side or the other of this line, 
they must be governed mainly by the course and usage of the gov¬ 
ernment, the objects for which taxes have been customarily and 
by long course of legislation levied, what objects or purposes have 
been considered necessary to the support and for the proper use 
of the government, whether state or municipal. Whatever law¬ 
fully pertains to this, and is sanctioned by time and the acquies¬ 
cence of the people, may well be held to belong to the public use, 
and proper for the maintenance of good government, though this 
may not be the only criterion of rightful taxation. 

But in the case before us, in which the towns are authorized to 
contribute aid by way of taxation to any class of manufacturers, 
there is no difficulty in holding that this is not such a public pur¬ 
pose as we have been considering. If it be said that a benefit 
results to the local public of a town by establishing manufacturers, 
the same may be said of any other business or pursuit which em¬ 
ploys capital or labor. The merchant, the mechanic, the innkeeper, 
the banker, the builder, the steamboat owner are equally promoters 
of the public good, and equally deserving the aid of the citizens 
by forced contributions. No line can be drawn in favor of the 
manufacturer which would not open the coffers of the public treas- 


300 


POWER OF TAXATION 


ury to the importunities of two-thirds of the business men of the 
city or town. * * * 

Judgment affirmed. 

[Cui^FORD, J., gave a dissenting opinion.] 


FALLBROOK IRRIGATION DISTRICT v. BRADLEY. 

(Supreme Court of United States, 1896. 164 U. S. 112, 17 Sup. Ct. 56, 41 L. 

Ed. 369.) 

[Appeal from the federal Circuit Court for the Southern District 
of California. The statutes of California (further stated in the opin¬ 
ion below) provided for the organization of irrigation districts, the 
irrigation works in which were to be provided for by taxation upon 
all the real property in the district according to its value. Such a 
district was formed, including within it the land of Mrs. Bradley, a 
subject of Great Britain resident in California. She refused to pay 
the tax assessed against the land under this statute, and filed a bill 
in the above-mentioned court to enjoin the giving of a deed for said 
land when sold for non-payment of said tax. The injunction issued 
and the Irrigation District appealed. Other facts appear in the 
opinion.] 

Mr. Justice Pe^ckham. * * * Coming to a review of these 
various objections, we think the first, that the water is not for a 
public use, is not well founded. The question what constitutes a 
public use has been before the courts of many of the states, and 
their decisions have not been harmonious; the inclination of some 
of these courts being towards a narrower and more limited defini¬ 
tion of such use than those of others. 

•There is no specific prohibition in the federal Constitution which 
acts upon the states in regard to their taking private property for 
any but a public use. The fifth amendment, which provides, among 
other things, that such property shall not be taken for public use 
without just compensation, applies only to the federal government,, 
as has many times been decided. Spies v. Illinois, 123 U. S. 131, 
8 Sup. Ct. 22, 31 L. Ed. 80; Thorington v. Montgomery, 147 U. S. 
»490, 13 Sup. Ct. 394, 37 L. Ed. 252. In the fourteenth amendment 
the provision regarding the taking of private property is omitted,, 
and the prohibition against the state is confined to its depriving any 
person of life, liberty, or property without due process of law. It 
is claimed, however, that the citizen is deprived of his property 
without due process of law if it be taken by or under state authority 
for any other than a public use, either under the guise of taxation 
or by the assumption of the right of eminent domain. In that way 
the question whether private property has been taken for any other 
than a public use becomes material in this court, even where the 



JURISDICTION AND PUBLIC PURPOSE 


301 


taking is under the authority of the state, instead of the federal, 
government. 

Is this assessment for the nonpayment of which the land of the 
plaintiff was to be sold, levied for a public purpose? The question 
has, in substance, been answered in the affirmative by the people 
of California, and by the legislative and judicial branches of the 
state government. * * ^ [Here follow the quotation of various 

constitutional and statutory provisions, and the citation of] Irriga¬ 
tion Dist. V. Williams, 76 Cal. 360, 18 Pac. 379; Irrigation Dist. v. 
De Lappe, 79 Cal. 351, 21 Pac. 825; In re Madera Irrigation Dist., 
92 Cal. 296, 28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 
106. * * * 

It is obvious, however, that what is a public use frequently and 
largely depends upon the facts and circumstances surrounding the 
particular subject-matter in regard to which the character of the 
use is questioned. 

To provide for the irrigation of lands in states where there is no 
color of necessity therefor, within any fair meaning of the term, 
and simply for the purpose of gratifying the taste of the owner, or 
his desire to enter upon the cultivation of an entirely new kind of 
crop, not necessary for the purpose of rendering the ordinary culti¬ 
vation of the land reasonably remunerative, might be regarded by 
courts as an improper exercise of legislative will, and the use 
might not be held to be public in any constitutional sense, no mat¬ 
ter how many owners were interested in the scheme. On the other 
hand, in a state like California, which confessedly embraces millions 
of acres of arid lands, an act of the legislature providing for their 
irrigation might well be regarded as an act devoting the water to a 
public use, and therefore as a valid exercise of the legislative power. 
The people of California and the members of her legislature must, 
in the nature of things, be more familiar with the facts and circum¬ 
stances which surround the subject, and with the necessities and 
the occasion for the irrigation of the lands, than can any one be who 
is a stranger to her soil. This knowledge and familiarity must have 
their due weight with the state courts which are to pass upon the 
question of public use in the light of the facts which surround the 
subject in their own state. For these reasons, while not regarding 
the matter as concluded by these various declarations and acts and 
decisions of the people and legislature and courts of California, we 
yet, in the consideration of the subject, accord to and treat them 
with very great respect, and we regard the decisions as embodying 
the deliberate judgment and matured thought of the courts of that 
state on this question. 

Viewing the subject for ourselves, and in the light of these con¬ 
siderations, we have very little difficulty in coming to the same 
conclusion reached by the courts of California. 

The use must be regarded as a public use, or else it would seem 


302 


POWER OF TAXATION 


to follow that no general scheme of irrigation can be formed or car¬ 
ried into effect. In general, the water to be used must be carried 
for some distance, and over or through private property, which 
cannot be taken in invitum if the use to which it is to be put be 
not public; and, if there be no power to take property by condem¬ 
nation, it may be impossible to acquire it at all. The use for which 
private property is to be taken must be a public one, whether the 
taking be by the exercise of the right of eminent domain or by that 
of taxation. Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. 
Ed. 896. A private company or corporation, without the power to 
acquire the land in invitum, would be of no real benefit; and, at 
any rate, the cost of the undertaking would be so greatly enhanced 
by the knowledge that the land must be acquired by purchase that 
it would be practically impossible to build the works or obtain the 
water. Individual enterprise would be equally ineffectual. No 
one owner would find it possible to construct and maintain water¬ 
works and canals any better than private corporations or com¬ 
panies, and, unless they had the power of eminent domain, they 
could accomplish nothing. If that power could be conferred upon 
them, it could only be upon the ground that the property they took 
was to be taken for a public purpose. 

While the consideration that the work of irrigation must be 
abandoned if the use of the water may not be held to be or con¬ 
stitute a public use is not to be regarded as conclusive in favor of 
such use, yet that fact is in this case a most important considera¬ 
tion. Millions of acres of land otherwise cultivable must be left 
in their present arid and worthless condition, and an effectual ob¬ 
stacle will therefore remain in the way of the advance of a large 
portion of the state in material wealth and prosperity. To irrigate, 
and thus to bring into possible cultivation, these large masses of 
otherwise worthless lands, would seem to be a public purpose, and 
a matter of public interest, not confined to the landowners, or even 
to any one section of the state. The fact that the use of the water 
is limited to the landowner is not, therefore, a fatal objection to this 
legislation. It is not essential that the entire community, or even 
any considerable portion thereof, should directly enjoy or partici¬ 
pate in an improvement in order to constitute a public use. All 
landowners in the district have the right to a proportionate share 
of the water, and no one landowner is favored above his fellow 
in his right to the use of the water. It is not necessary, in order 
that the use should be public, that every resident in the district 
should have the right to the use of the water. The water is not 
used for general, domestic, or for drinking purposes, and it is plain 
from the scheme of the act that the water is intended for the use 
of those who will have occasion to use it on their lands. Never¬ 
theless, if it should so happen that at any particular time the land- 
owner should have more water than he wanted to use on his land. 


JURISDICTION AND PUBLIC PURPOSE 


303 


he has the right to sell or assign the surplus or the whole of the 
water, as he may choose. 

The method of the distribution of the water for irrigation pur¬ 
poses provided for in section 11 of the act is criticised as amount¬ 
ing to a distribution to individuals, and not to lands, and on that 
account it is claimed that the use for irrigation may not be achiev¬ 
ed, and therefore the only purpose which could render the use a 
public one may not exist. This claim we consider not well found¬ 
ed in the language and true construction of the act. It is plain 
that some method for apportioning the use of the water to the 
various lands to be benefited must be employed, and what better 
plan than to say that it shall be apportioned ratably to each land- 
owner upon the basis which the last assessment of such owner for 
district purposes within the district bears to the whole sum as¬ 
sessed upon the district? Such an apportionment, when followed 
by the right to assign the whole or any portion of the waters 
apportioned to the landowner, operates with as near an approach 
to justice and equality as can be hoped for in such matters, and 
does not alter the use from a public to a private one. This right 
of assignment may be availed of also by the owner of any lands 
which, in his judgment, would not be benefited by irrigation, al¬ 
though the board of supervisors may have otherwise decided. We 
think it clearly appears that all who, by reason of their ownership 
of or connection with any portion of the lands, would have occa¬ 
sion to use the water, would, in truth, have the opportunity to use 
it upon the same terms as all others similarly situated. In this way 
the use, so far as this point is concerned, is public, because all per¬ 
sons have the right to use the water under the same circumstances. 
This is sufficient. 

The case does not essentially differ from that of Hagar v. Rec¬ 
lamation Dist., Ill U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569, where 
this court held that the power of the legislature of California to 
prescribe a system for reclaiming swamp lands was not incon¬ 
sistent with any provision of the federal constitution. The power 
does not rest simply upon the ground that the reclamation must be 
necessary for the public health. That, indeed, is one ground for 
interposition by the state, but not the only one. Statutes authoriz¬ 
ing drainage of swamp lands have frequently been upheld inde¬ 
pendently of any effect upon the public health, as reasonable regu¬ 
lations for the general advantage of those who are treated for this 
purpose as owners of a common property. Head v. Manufactur¬ 
ing Co., 113 U. S. 9, 22, 5 Sup. Ct. 441, 446, 28 L. Ed. 889; Wurts 
V. Hoagland, 114 U. S. 606, 611, 5 Sup. Ct. 1086, 1089, 29 E. Ed. 
229; Cooley, Tax’n (2d Ed.) p. 617. If it be essential or material 
for the prosperity of the community, and if the improvement be 
one in which all the landowners have to a certain extent a com¬ 
mon interest, and the improvement cannot be accomplished with- 


304 


POWER OF TAXATION 


out the concurrence of all or nearly all of such owners by reason 
of the peculiar natural condition of the tract sought to be reclaim¬ 
ed, then such reclamation may be made, and the land rendered 
useful to all, and at their joint expense. In’such case the absolute 
right of each individual owner of land must yield to a certain 
extent, or be modified by corresponding rights on the part of other 
owners for what is declared upon the whole to be for the public 
benefit. 

Irrigation is not so different from the reclamation of swamps as 
to require the application of other and different principles to the 
case. The fact that, in draining swamp lands, it is a necessity to 
drain the lands of all owners which are similarly situated, goes 
only to the extent of the peculiarity of situation and the kind of 
land. Some of the swamp lands may not be nearly so wet and 
worthless as some others, and yet all may be so situated as to be 
benefited by the reclamation; and whether it is so situated or not 
must be a question of fact. The same reasoning applies to land 
which is, to some extent, arid, instead of wet. Indeed, the general 
principle that arid lands may be provided with water, and the cost 
thereof provided for by a general tax, or by an assessment for local 
improvement upon the lands benefited, seems to be admitted by 
counsel for the appellees. This, necessarily, assumes the proposi¬ 
tion that water used for irrigation purposes upon* lands which are 
actually arid is used for a public purpose, and the tax to pay for 
it is collected for a public use, and the assessment upon lands 
benefited is also levied for a public purpose. Taking all the facts 
into consideration, as already touched upon, we have no doubt that 
the irrigation of really arid lands is a public purpose, and the wa¬ 
ter thus used is put to a public use. 

2. The second objection urged by the appellees herein is that 
the operations of this act need not be, and are not limited to arid, 
unproductive lands, but include within its possibilities all lands, 
no matter how fertile or productive, so long as they are suscep¬ 
tible, “in their natural state,’' of one mode of irrigation from a 
common source, etc. The words “in their natural state” are in¬ 
terpolated in the text of the statute by the counsel for the appel¬ 
lees, on the assumption that the supremxe court of California has 
thus construed the act in the Tregea Case, 88 Cal. 334, 26 Pac. 
241. The objection had been made in that case that it was unlaw¬ 
ful to include the city of Modesto in an irrigation district. The 
court, per Chief Justice Beatty, said that the legislature undoubt¬ 
edly intended that cities and towns should in proper cases be in¬ 
cluded in irrigation districts, and that the act as thus construed 
did not violate the state Constitution. The learned chief justice 
also said: 

“The idea of a city or town is, of course, associated with the 
existence of streets to a greater or less extent, lined with shops and 


JURISDICTION AND PUBLIC PURPOSE 


305 


stores, as well as of dwelling houses; but it is also a notorious fact 
that in many of the towns and cities of California there are gardens 
and orchards, inside the corporate boundaries, requiring irriga¬ 
tion. It is equally notorious that in many districts lying outside 
of the corporate limits of any city or town, there are not only roads 
and highways, but dwelling houses, outhouses, warehouses, and 
shops. With respect to these things, which determine the use¬ 
fulness of irrigation, there is only a difference of degree between 
town and country. * * * We construe the act to mean that 

the board may include in the boundaries of the district all lands 
which in their natural state would be benefited by irrigation, and 
are susceptible of irrigation by one system, regardless of the fact 
that buildings or other structures may have been erected here and 
there upon small lots, which are thereby rendered unfit for cultiva¬ 
tion, at the same time that their value for other purposes may 
have been greatly enhanced.” * * * 

As an evidence of what can be done under the act, it is alleged 
in the complaint in this suit that the plaintiff is the owner of 40 
acres of land in the district, and that it is worth $5,000, and that 
it is subject to beneficial use without the necessity of water for 
irrigation, and that it has been used beneficially for the past sev¬ 
eral years for purposes other than cultivation with irrigation. 
These allegations are admitted by the answer of the defendants, 
who nevertheless assert that, if a sufficient supply of water is ob¬ 
tained for the irrigation of the plaintiff’s land, the same can be 
beneficially used for many purposes other than that for which it 
can be used without the water for irrigating the same. 

What is the limit, of the power of the legislature in regard to 
providing for irrigation? Is it bounded by the absolutely worth¬ 
less condition of the land without the artificial irrigation? Is it 
confined to land which cannot otherwise be made to yield the 
smallest particle of a return for the labor bestowed upon it? If 
not absolutely worthless and incapable of growing any valuable 
thing without the water, how valuable may the land be, and to 
what beneficial use and to what extent may it be put, before it 
reaches the point at which the legislature has no power to provide 
for its improvement by that means? The general power of the 
legislature over the subject of providing for the irrigation of cer¬ 
tain kinds of lands must be admitted and assumed. The further 
questions of limitation, as above propounded, are somewhat legis¬ 
lative in their nature, although subject to the scrutiny and judg¬ 
ment of the courts, to the extent that it must appear that the use 
intended is a “public use,” as that expression has been defined rela¬ 
tively to this kind of legislation. 

The legislature by this act has not itself named any irrigation 
district, and, of course, has not decided as to the nature and quality 
Hall Cases Const.L.—20 


306 


POWER OF TAXATION 


of any specific lands which have been included in any such district. 
It has given a general statement as to what conditions must exist 
in order to permit the inclusion of any land within a district. The 
land which can properly be so included is, as we think, sufficiently 
limited in its character by the provisions of the act. It must be 
susceptible of one mode of irrigation, from a common source, and 
by the same system of works, and it must be of such a character 
that it will be benefited by irrigation by the system to be adopted. 
This, as we think, means that the amount of benefit must be sub¬ 
stantial, and not limited to the creation of an opportunity to there¬ 
after use the land for a new kind of crop, while not substantially 
benefiting it for the cultivation of the old kind, which it had pro¬ 
duced in reasonable quantities, and with ordinary certainty and 
success, without the aid of artificial irrigation. The question 
whether any particular land would be thus benefited is necessarily 
one of fact. * * * jf j^^d which can, to a certain extent, be 

beneficially used without artificial irrigation, may yet be so much 
improved by it that it will be thereby, and for its original use, 
substantially benefited, and, in addition to the former use, though 
not in exclusion of it, if it can then be put to other and more re¬ 
munerative uses, we think it erroneous to say that the furnishing 
of artificial irrigation to that kind of land cannot be, in a legal 
sense, a public improvement, or the use of the water a public 
use. * * Hs 

Judgment reversed. 

[FuIvIvER, C. J., and Fi^ed, J., dissented.] 


OPINION OF THE JUSTICES. 

(Supreme Judicial Court of Massachusetts, 1912. 211 Mass. 624, 98 N. E 611, 
42 L. R. A. [N. S.] 221.) 

[Answer to questions of the Massachusetts House of Repre¬ 
sentatives, set forth in the opinion below.] 

Opinion (of all the Justices). The questions relate to the con¬ 
stitutionality of a bill entitled “An act to extend and define the 
duties of the Homestead Commission.” The general scheme em¬ 
bodied in the proposed bill is that the commonwealth shall pur¬ 
chase land, and develop, build upon, rent, manage, sell and re-pur¬ 
chase the same. The Homestead Commission is clothed with the 
fullest power to go into the business of buying, renting and selling 
real estate. As expressed in the bill, its purpose is to provide 
homes “for mechanics, laborers, or other wage-earners,” or as sug¬ 
gested by the amendment set forth in the second question, to im¬ 
prove “the public health by providing homes in the more thinly 
populated areas of the state for those who might otherwise live in 
the most congested areas of the state.” In a constitutional sense 



JURISDICTION AND PUBLIC PURPOSE 


307 


the difference between these two statements of purpose is not 
material in view of the actual provisions of the bill. The substance 
of it is that the commonwealth is to go into the business of furnish¬ 
ing homes for people who have money enough to pay rent and 
ultimately to become purchasers. It is not a plan for pauper re¬ 
lief. The question is whether this is a public use. 

To this fundamental test must be brought all governmental ac¬ 
tivity in every system based upon reason rather than force. The 
dominating design of a statute requiring the use of public funds 
must be the promotion of public interests and not the furtherance 
of the advantage of individuals. However beneficial in a general 
or popular sense it may be that private interests should prosper 
and thus incidentally serve the public, the expenditure of public 
money to this end is not justified. Government aid to manufactur¬ 
ing enterprises, the development of water powers and other nat¬ 
ural resources by private persons or corporations with public 
funds, either through loans or by the more indirect method of ex¬ 
emption from taxation or taking of stock, have been universally 
condemned by courts throughout the country, although often at¬ 
tempted by legislation. The leading case is Lowell v. Boston, 111 
Mass. 454, 15 Am. Rep. 39, where a statute was considered au¬ 
thorizing the city of Boston to issue bonds for the raising of mon¬ 
ey to be lent to owners of real estate whose buildings had been de¬ 
stroyed in the devastation wrought by the Boston fire of 1872. 
This statement of the law by Mr. Justice Wells, at page 461 of 
111 Mass., 15 Am. Rep. 39, hardly can be surpassed for accuracy 
and clearness: 

“The promotion of the interests of individuals, either in respect 
of property or business, although it may result incidentally in the 
advancement of the public welfare, is, in its essential character, a 
private and not a public object. However certain and great the 
resulting good to the general public, it does not, by reason of its 
comparative importance, cease to be incidental. The incidental 
advantage to the public or to the state, which results from the pro¬ 
motion of private interests, and the prosperity of private enter¬ 
prises or business, does not justify their aid by the use of public 
money raised by taxation, or for which taxation may become 
necessary. It is the essential character of the direct object of the 
expenditure which must determine its validity, as justifying a tax, 
and not the magnitude of the interests to be affected, nor the de¬ 
gree to which the general advantage of the community and thus 
the public welfare may be ultimately benefited by their promo¬ 
tion.'’ 

This principle has been applied to a great variety of cases. It 
was amplified with a full citation of authorities in Opinion of the 
Justices, 204 Mass. 607, 91 N. E. 405, 27 L. R. A. (N. S.) 483. 

The question, in its last analysis is one of taxation. Can the 


308 


POWER OF TAXATION 


commonwealth raise money by taxation for the purposes set forth 
in the act? * * * 

[After referring to a provision permitting the use by the Home¬ 
stead Commission of the savings bank deposits of unknown own¬ 
ers, untouched for 30 years, which a prior statute had required 
to be paid to the state to be kept for the owners:] [This] would 
be treating the money in substance as escheated. Even if it were 
escheated it then would be money in the treasury freed from any 
trust. Such money, however, is public money and can be appro¬ 
priated only to public uses. It can no more be diverted for pri¬ 
vate benefit than can money raised by taxation. Simmons v. Han¬ 
over, 23 Pick. 188; Allen v. Marion, 11 Allen, 108. 

Taxation is somewhat historical in its nature and can be most 
intelligently approached by comparison of those subjects which 
have been held to be a public use and those which have been held 
not to be a public use. It is not now open to question that the 
establishment and maintenance of water and sewerage systems 
and electric light and gas plants are public uses. They relate to 
commodities which are or have become universally necessary, and 
they cannot be procured by each individual or family acting sep¬ 
arately, but require co-operation. As a practical matter provision 
for these necessities is monopolistic in character, and having due 
regard to the reasonable convenience of the public, there can be 
no competition respecting them. The permanently exclusive use of 
portions of the public ways is essential to the efiective furnishing 
of these necessities. Plighways are public in their nature, and 
their construction and repair are legitimate public expenses. 
Hence they cannot be appropriated to any use which is private. 
These necessities cannot be provided without the exercise of pow¬ 
ers conferred only by the Legislature, and commonly require the 
exercise of eminent domain. Although water and artificial light 
are in a certain sense beneficial to individuals, their public func¬ 
tions are so overshadowing as to stamp them as proper subjects 
for state or municipal ownership. Opinion of the Justices, 150 
Mass. 592, 24 N. E. 1084, 8 L. R. A. 487. 

On the other hand it was said in Opinions of the Justices, in 
1893, 155 Mass. 598, 30 N. E. 1142, 15 L. R. A. 809, and again in 
1903, 182 Mass. 605, 66 N. E. 25, that it was beyond the power of 
the Legislature to authorize cities and towns to engage in the busi¬ 
ness of furnishing coal or fuel to the public. The economic aspects 
of conducting business of this character through public instrumen¬ 
talities are not for our consideration. Such a system is not pos¬ 
sible under our Constitution. The grounds upon which these opin¬ 
ions were founded are that such enterprises are conducted by in¬ 
dividuals. They are universally recognized as legitimate and prop¬ 
er fields for private and personal adventure. No legislative au¬ 
thority is required to engage in them, and no powers derived from 


JURISDICTION AND PUBLIC PURPOSE 


309 


that source are needed for their prosecution. It is a natural right 
subject only to regulation by the police power. A person lawfully 
in such business cannot be driven out by taxation to sup¬ 
port his rival even though that rival be an arm of government. 

The questions of the present order are closely analogous to 
those raised by the order of the honorable House considered in 
Opinion of the Justices, 204 Mass. 607, 91 N. E. 405, 27 L. R. A. 
(N. S.) 483. It was said there in substance that it was not within 
the power of the Legislature to authorize the taking of land out¬ 
side the limits of streets for the purpose of being leased or sold 
under such restrictions as would insure proper development of 
industrial and commercial facilities. Such purpose was said to 
be primarily for the aggrandizement of individuals and only in¬ 
cidentally for the promotion of the public weal. We are unable to 
distinguish the purchase, development, rental and sale of land in 
the manner provided by the present bill from the principles an¬ 
nounced in these decisions and opinions and many others collected 
and somewhat reviewed in 204 Mass. 607, 91 N. E. 405, 27 L. R. 
A. (N. S.) 483. 

Buying and selling land always has been freely exercised by all 
individuals who desired, under the Constitution. Proprietorship 
of his own home has been one of the chief elements of strength 
in the citizen, and widely diffused land ownership has conferred 
stability upon the state. It is matter of common knowledge that 
thousands of inhabitants of the commonwealth who are “mechan¬ 
ics, laborers or other wage-earners” have become, through in¬ 
dustry, temperance and frugality, owners of the homes in which 
they dwell. These proprietors, however humble may be their 
houses, cannot be taxed for the purpose of enabling the state to 
aid others in acquiring a home whose temperament, environment 
or ^habits have heretofore prevented them from attaining a like 
position. Although eminent domain differs from taxation in the 
occasion and manner of its exercise, it rests for its justification 
upon the same basic principle of public.necessity. If this be held 
to be a public purpose, it would be lawful to authorize the commis¬ 
sion to exercise the power of eminent domain. This would mean 
that the home of one wage-earner might be taken by the power 
of the commonwealth for the purpose of handing it over to an¬ 
other wage-earner. Neither the power of taxation nor of eminent 
domain goes to this extent. If the purpose is a public one, the 
property of every inhabitant, however improved or used, must 
yield to the superior right. But if the end to be gained is not pub¬ 
lic, no one can be compelled to contribute under either form of 
governmental power. 

Ownership of a bit of land is one of the deep seated desires of 
mankind. The property resting on such proprietorship is among 
the dearest rights in the minds of many people secured by the 


310 


POWER OF TAXATION 


Constitution. If the power exists in the Legislature to take a 
tract of land away from one owner for the purpose of enabling an¬ 
other to get the same tract, the whole subject of such ownership 
becomes a matter of legislative determination and not of constitu¬ 
tional right. 

Experiments in other lands, where the people have established 
either no bounds or fragile ones to the absolutism of governmental 
powers by a written constitution, afford no guide in the determina¬ 
tion of what our Constitution permits. 

It may be urged that the measure is aimed at mitigating the 
evils of overcrowded tenements and unhealthy slums. These evils 
are a proper subject for the exercise of the police power. Through 
the enactment of building ordinances, regulations and inspection as 
to housidg and provision for light and air lies a broad field for the 
suppression of mischiefs of this kind. 

Questions answered in the negative. 


III. Classification for Taxation • 


PEOPLE ex rel. HATCH v. REARDON. 

(Court of Appeals of New York, 1906. 184 N. Y. 431, 77 N. E, 970, 8 L. R. A. 

[N. S.] 314, 112 Am. St. Rep. 628, 6 Ann. Cas. 515.) 

[Appeal from the Appellate Division of the Supreme Court of 
New York for the First Department. A New York statute of 
1905 imposed a stamp tax, of two cents on each $100 of face .value 
or fraction thereof, on all sales or transfers of shares of stock in 
associations or corporations. Non-payment of the tax was made a 
misdemeanor. One Hatch sold 100 shares of the Southern Rail¬ 
way Company of Virginia, at the market value of $30.75 a share, 
and 100 shares of the Chicago, Milwaukee & St. Paul Railroad 
Company of Wisconsin, at the market value of $172 a share. The 
face value of each of these shares was $100. Hatch was arrested 
for non-payment of the tax on these sales, and a writ of habeas 
corpus was issued for his release. The writ was dismissed by the 
Supreme Court and this was affirmed by the Appellate Division. 
Other facts appear in the opinion.] 

Vann, j. * * * Second. The classification made by selecting 
one kind of property and taxing the transfer of that only, is as¬ 
sailed as so arbitrary, discriminating, and unreasonable as to de¬ 
prive certain persons^ of their property without due process of law 
and to withhold from them the equal protection of the laws. All 

a For discussion of principles, see Black, Const. Law (3d Ed.) §§ 165, 166. 




CLASSIFICATION FOR TAXATION 


311 


taxation is arbitrary, for it compels the citizen to give up a part 
of his property; it is generally discriminating, for otherwise every¬ 
thing would be taxed, which has never yet been done, and there 
would be no exemption on account of education, charity, or re¬ 
ligion, and frequently it is unreasonable, but that does not make it 
unconstitutional, even if the result is double taxation. People v. 
Home Ins. Co., 92 N. Y. 328, 347. The right to tax is not granted 
by the Constitution but of necessity underlies it, because govern¬ 
ment could not exist or perform its functions without it. While 
it may be regulated and limited by the fundamental law, it exists 
“independently of it as a necessary attribute of sovereignty.” 
People V. Adirondack Ry. Co., 160 N. Y. 225, 236, 54 N. E. 689, 
692. “The power of taxation being legislative, all the incidents 
are within the control of the Legislature. The purposes for which 
a tax shall be levied; the extent of taxation; the apportionment of 
the tax; upon what property or class of persons the tax shall 
operate; whether the tax shall be general or limited to a particular 
locality, and in the latter case, the fixing of a district of assess¬ 
ment; the method of collection, and whether a tax shall be a 
charge upon both person and property, or only on the land—are 
matters within the discretion of the Legislature and in respect to 
which its determination is final.” Genet v. City of Brooklyn, 99 
N. Y. 296, 306, 1 N. E. 777, 783. “A tax may be imposed only on 
certain callings and trades, for when the state exerts its power 
to tax it is not bound to tax all pursuits or all property that may 
be legitimately taxed for governmental purposes. It would be an 
intolerable burden if the state could not tax any property or call¬ 
ing unless at the same time it taxed all property or all callings.” 
Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 562, 22 Sup. Ct. 
431, 440, 46 L. Ed. 679; Armour Packing Co. v. Lacey, 200 U. 
S. 226, 235, 26 Sup. Ct. 232, 234, 50 L. Ed. 451. “We cannot say 
that treating stocks of corporations as a class .subject to special 
restrictions was unjust discrimination or denial of the full protec¬ 
tion of the laws.” Otis v. Parker, 187 U. S. 606, 610, 23 Sup. Ct. 
168, 170, 47 L. Ed. 323. “The Legislature must decide when and 
how and for what public purposes a tax shall be levied and must 
select the subjects of taxation.” 1 Cooley on Taxation (3d Ed.) 
255. 

There is no express restriction upon this power in our state Con¬ 
stitution and no implied restriction, except by the primary guar¬ 
anties relating to life, liberty, property and due process of law. 
The same is true of the federal Constitution except as to certain 
subjects of national interest under the control of Congress, such 
as imports, patent rights and agencies used to carry the powers 
of Congress into execution. Subject to these restraints, the Legis¬ 
lature has supreme control of the power to tax, and its action, even 
if arbitrary, discriminating and unreasonable, is binding upon all 


312 


POWER OF TAXATION 


persons and property within the boundaries of the state. The 
state retained all the power of legislation that it did not part with 
in adopting the federal Constitution or consenting to the amend¬ 
ment thereof, and subject to that exception, it is as supreme as 
the British Parliament, which is restrained only by the custom of 
the realm and the conservatism of the people. Taxes upon the 
right of succession to property by will and intestate law, on 
special franchises and upon the sale of intoxicating liquors, are 
recent instances of the exercise of this power by the state through 
the selection of special subjects of taxation, involving the exemp¬ 
tion of all others, each of which was attacked as in violation of 
both Constitutions, but all were sustained by the courts. The 
tariff and internal revenue laws show that the same power of 
selection has been exercised by Congress, and the federal courts 
have uniformly upheld it. Indeed, the prototype of the statute be¬ 
fore us was an act of Congress passed in 1898, known as the War 
Revenue Act (Act June 13, 1898, c. 448, 30 Stat. 448 [U. S. Comp. 
St. 1901, p. 2286]), imposing a stamp tax on sales, transfers and 
deliveries of stock certificates, which was sustained without dis¬ 
sent by the Circuit and Supreme Courts of the United States. 
United States v. Thomas (C. C.) 115 Fed. 207; Thomas v. United 
States, 192 U. S. 363, 24 Sup. Ct. 305, 48 U. Ed. 481. A like tax 
on sales of merchandise, although expressly limited to those made 
at “any exchange or board of trade,” leaving all other sales un¬ 
touched, was also sustained, and the declaration made that “a sale 
at an exchange does form a proper basis for a classification which 
excludes all sales made elsewhere from taxation.” Nicol v. Ames, 
173 U. S. 509, 521, 19 Sup. Ct. 522, 527, 43 L. Ed. 786. 

The Legislature has power to classify as it sees fit by imposing 
a heavy burden on one class of property and no burden at all upon 
others, the remedy for injudicious action being in the hands of the 
people, not of the courts. Arbitrary selection and discrimination 
characterize the history of legislation, both state and national, with 
reference to taxation, yet, when all persons and property in the 
same class are treated alike, it has uniformly been sustained both 
by the state and federal courts. The tax on tobacco, on oleomar¬ 
garine and the like is not less arbitrary or discriminating than the 
tax in question. While a tax upon a particular house, or horse, 
or the houses or horses of a particular man, or on the sale thereof, 
would obviously invade a constitutional right, still a tax upon all 
houses, leaving barns and business buildings untaxed, or upon all 
horses or the sale thereof, leaving sheep and cows untaxed, how¬ 
ever unwise, would be within the power of the Legislature. This 
is true of a tax on all houses with “more than one chimney,” or 
“with more than one hearthstone,” or on all race horses. The 
power of taxation necessarily involves the right of selection, which 
is without limitation, provided all persons in the same situation 


CLASSIFICATION FOR TAXATION 


313 


are treated alike and the tax imposed equally upon all property of 
the class to which it belongs. Matter of McPherson, 104 N. Y. 
306, 318, 10 N. E. 685, 58 Am. Rep. 502; Matter of Gould’s Estate, 
156 N. Y. 423, 427, 51 N. E. 287. The equal protection of the laws 
“only requires the same means and methods to be applied impar¬ 
tially to all the constituents of each class, so that the laws shall 
operate equally and uniformly upon all persons in similar circum¬ 
stances.” Kentucky R. R. Cases, 115 U. S. 321, 337, 6 Sup. Ct. 
57, 63, 29 E. Ed. 414. Or, in other words,.all persons must “be 
treated alike under like circumstances and conditions, both in the 
privilege conferred and the liabilities imposed.” Magoun v. Il¬ 
linois Trust & Savings Bank, 170 U. S. 283, 293, 18 Sup. Ct. 594, 
598, 42 L. Ed. 1037; Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. 
350, 30 L. Ed. 578; Barbier v. Connolly, 113 U. S. 27, 32, 5 Sup. 
Ct. 357, 28 L. Ed. 923. “Let it reach all of a class, either of per¬ 
sons or things, it matters not whether those included in it be one 
or many, or whether they reside in any particular locality or are 
scattered all over the state.” 1 Cooley on Taxation (3d Ed.) 260. 

The tax in question is not imposed upon property, but on the 
transfer of a certain class of property, extensively bought and sold 
throughout the state. It does not discriminate between different 
kinds of stocks, taxing the sale of some and leaving others untaxed, 
but treats all in the class alike. The class includes all sales of 
certificates issued by any domestic or foreign association, com¬ 
pany, or corporation. It is a large and comprehensive class, as is 
shown by the revenue produced, which amounts to five or six mil¬ 
lions per annum. The sales affected are made chiefly for specula¬ 
tion which may have influenced the Legislature in making the 
selection. The statute operates equally and uniformly upon all 
transfers of the class named when made by any person within the 
state. All persons who sell stocks are treated alike and all parts 
of the state are treated alike. It applies with equal force to all 
sales, whether in the city or country, in exchanges, offices or on the 
street, by farmers, mechanics, brokers, and others. The classifica¬ 
tion violates neither Constitution. 

Third. It is claimed that the statute is invalid because it fixes 
the amount of the tax regardless of the value of the certificates 
sold or of the sum for which they are sold. The tax in question is. 
an excise tax which need not depend upon any principle of valua¬ 
tion or on any notice to the taxpayer. * * ^ When a sale is. 

made the tax follows, and the Legislature had the right to measure 
it in any way that it saw fit. A tax of two cents on every check, 
regardless of the amount for which it was drawn, and of five cents 
on a written contract, whether it covered a transaction involving 
hundreds or thousands, may be referred to as examples of what 
has been done without serious question in the imposition of excise 
taxes. A poll tax does not depend upon the income or earning 


314 


POWER OP TAXATION 


capacity of the persons subject to it. A tax on carriages, guns, and 
watches does not rest on the value of the subjects taxed. They 
are counted, not appraised. Hylton v. United States, 3 Dali. (U. 
S.) 171, 1 Iv. Ed. 556; Bell’s Gap R. R. Co. v. Pennsylvania, 134 
U. S. 232, 237, 10 Sup. Ct. 533, 33 L. Ed. 892. The same is true of 
an excise tax on legal process, domestic animals, avocations, and 
the like of which there have been many instances during the his¬ 
tory of the nation and the different states. Such powers of taxa¬ 
tion, as was said in a late case, '‘have admittedly belonged to state 
and nation from the foundation of the government.” Knowlton v. 
Moore, 178 U. S. 41, 60, 20 Sup. Ct. 747, 755, 44 L. Ed. 969. * * * 
Convenience in doing business, the slight cost of collection and 
the necessity of preventing evasion are important considerations in 
laying an excise tax and the rule of counting rather than valuing 
is almost universally adopted, so that the citizen may know at 
once the amount of the tax and pay it by affixing the stamps re¬ 
quired, which are permanent evidence of the sum paid. The stat¬ 
ute itself in all such cases, as well as in the case under considera¬ 
tion, apportions the tax and the power of apportionment is part 
of the power of taxation. As was said by this court many years 
ago: “The power of taxing and the power of apportioning taxa¬ 
tion are identical and inseparable. Taxes cannot be laid without 
apportionment, and the power of apportionment is, therefore, un¬ 
limited, unless it be restrained as a part of the power of taxation. 
There is not, and since the original organization of the state gov¬ 
ernment, there has not been any such constitutional limitation or 
restraint.” People ex rel. Griffin v. Mayor, etc., of Brooklyn, 4 
N. Y. 419, 427, 55 Am. Dec. 266. The highest federal court sus¬ 
tained without hesitation an assessment upon the nominal or 
face value of bonds instead of upon their actual value, and also 
declared that absence of notice to the owners of the bonds was not 
a taking of the bondholder’s property without due process of law. 
Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 
533, 33 L. Ed. 892; Jennings v. Coal Ridge Improvement & Coal 
Co., 147 U. S. 147, 13 Sup. Ct. 282, 37 E. Ed. 116. In the Thomas 
Case, precisely as in the case before us, the tax was measured by 
“each hundred dollars of face value or fraction thereof.” As our 
Legislature has all the power of legislation with reference to taxa¬ 
tion that the state has, of necessity it has as much power to classi¬ 
fy and measure as belongs to Congress. Hence, this point, as well 
as the last preceding, was involved and decided in the Thomas 
Case even if no expression of consideration appears in the opin¬ 
ions. United States v. Thomas (C. C.) 115 Fed. 207; Thomas v. 
United States, 192 U. S. 363, 24 Sup. Ct. 305, 48 L. Ed. 481. We 
think that .the apportionment, even when so unequal in result as 
it was in the two sales described in the affidavit of the complain- 


CLASSIFICATION FOR TAXATION 


315 


ant, is within the exclusive control of the Legislature, with no 
power in the courts to interfere. *' * * 

Order affirmed.^ 


VILLAGE OF NORWOOD v. BAKER. 

(Supreme Court of United States, 1898. 172 U. S. 269, 19 Sup. Ct. 187, 43 

L. Ed. 443.) 

[Appeal from the United States Circuit Court for Southern Dis¬ 
trict of Ohio. Ohio cities and villages were empowered by statute 
to open streets, and to assess such part of the cost thereof as they 
pleased by the front foot upon property bounding and abutting 
thereon. A street 300 feet long and 50 feet wide was opened by 
the village of Norwood through a large tract of land owned by 
Ellen Baker, who, being the sole owner of all abutting property, 
was required under this statute to pay the whole cost thereof, in¬ 
cluding the expenses of condemnation proceedings. Baker ob¬ 
tained an injunction in the above-named Circuit Court against the 
enforcement of this assessment, as depriving her of due process 
of law under the fourteenth amendment, and this appeal was 
taken.] 

Mr. Justice Harlan. * * * Undoubtedly, abutting owners 

may be subjected to special assessments to meet the expenses of 
opening public highways in front of their property; such assess¬ 
ments, according to well-established principles, resting upon the 
ground that special burdens may be imposed for special or peculiar 

4 “While the Legislature has wide latitude in classification, its power in 
that regard is not without limitation, for the classification must have some 
basis, reasonable or unreasonable, other than mere accident, whim, or ca¬ 
price. There must be some support of taste, policy, difference of situation or 
the like; some reason for it, even if it is a poor one. While the state can 
tax some occupations and omit others, can it tax only such members of a 
calling as have blue eyes or black hair? We have said that it could tax 
horses and leave sheep untaxed, but it does not follow that it could tax white 
horses and omit all others, or tax the sale of certificates printed on white 
paper, and not those on yellow or brown. While one class may be made of 
horses and another of sheep, or even a class made of race horses, owing to 
the use made of them, without a shock to common sense, a classification lim¬ 
ited to white horses would be so arbitrary as to amount to tyranny, because 
there would be no semblance of reason for it. A reason might be advanced, 
although specious and unsound, for taxing Holstein bulls and no others, but 
could even a sophist argue in favor of taxing Holstein steers and no others, 
since they are incapable of reproduction? A classification of dealers in ciga¬ 
rettes into those selling at wholesale without the state and those selling at 
retail within the state was sustained on the ground that the two occupations 
are distinct (Cook v. Marshall County, 196 U. S. 261, 274, 25 Sup. Ct. 233, 49 
L. Ed. 471), but could dealers in any commodity be classified according to age, 
size, or complexion? A classification of sales into those made in an exchange 
and those made elsewhere was sustained in another case, but could exchanges 
be so classified as to tax only such sales as are made in those carried on in 
brick buildings? Nicol v. Ames, 173 U. S. 509, 19 Sup. Ct. 522, 43 L. Ed. 786.” 
—People ex rel. Farrington v. Mensching, 187 N. Y. 8, 18, 79 N. E. 884, 10 
L. R. A. (N. S.) 625, 10 Ann. Cas. 101 (1907), by Vann, J. 



316 


POWER OF TAXATION 


benefits accruing from public improvements. Mobile Co. v. Kim¬ 
ball, 102 U. S. 691, 703, 704, 26 L. Ed. 238; Railroad Co. v. De¬ 
catur, 147 U. S. 190, 202, 13 Sup. Ct. 293, 37 E. Ed. 132; Bauman 
V. Ross, 167 U. S. 548, 589, 17 Sup. Ct. 966, 42 L. Ed. 270, and au¬ 
thorities there cited. And, according to the weight of judicial 
authority, the legislature has a large discretion in defining the 
territory to be deemed specially benefited by a public improve¬ 
ment, and which may be subjected to special assessment to meet 
the cost of such improvement. In Williams v. Eggleston, 170 U. 
S. 304, 311, 18 Sup. Ct. 619, 42 L. Ed. 1047, where the only question, 
as this court stated, was as to the power of the legislature to cast 
the burden of a public improvement upon certain towns, which 
had been judicially determined to be towns benefited by such im¬ 
provement, it was said: “Neither can it be doubted that, if the 
state constitution does not prohibit, the legislature, speaking gen¬ 
erally, may create a new taxing district, determine what territory 
shall belong to such district, and what property shall be considered 
as benefited by a proposed improvement.’^ 

But the power of the legislature in these matters is not unlim¬ 
ited. There is a point beyond which the legislative department, 
even when exerting the power of taxation, may not go, consistently 
with the citizen’s right of property. As already indicated, the 
principle underlying special assessments to meet the cost of public 
improvements is that the property upon which they are imposed 
is peculiarly benefited, and, therefore, the owners do not, in fact, 
pay anything in excess of what they receive by reason of such im¬ 
provement. But the guaranties for the protection of private prop¬ 
erty would be seriously impaired, if it were established as a rule 
of constitutional law that the imposition by the legislature upon 
particular private property of the entire cost of a public improve¬ 
ment, irrespective of any peculiar benefits accruing to the owner 
from such improvement, could not be questioned by him in the 
courts of the country. It is one thing for the legislature to pre¬ 
scribe it as a general rule that property abutting on a street opened 
by the public shall be deemed to have been specially benefited by 
such improvement, and therefore, should specially contribute to 
the cost incurred by the public. It is quite a different thing to lay 
it down as an absolute rule that such property, whether it is in 
fact benefited or not by the opening of the street, may be assessed 
by the front foot for a fixed sum, representing the whole cost of 
the improvement, and without any right in the property owner to 
show, when an assessment of that kind is made, or is about to be 
made, that the sum so fixed is in excess of the benefits received. 

In our judgment, the exaction from the owner of private prop¬ 
erty of the cost of a public improvement in substantial excess of 
the special benefits accruing to him is, to the extent of such excess, 
a taking, under the guise of taxation, of private property for public 


CLASSIFICATION FOR TAXATION 


317 


use without compensation. We say “substantial excess/* because 
exact equality of taxation is not always attainable; and for that 
reason the excess of cost over special benefits, unless it be of a 
material character, ought not to be regarded by a court of equity, 
when its aid is invoked to restrain the enforcement of a special 
assessment. * * * 

It will not escape observation that if the entire cost incurred by 
a municipal corporation in condemning land for the purpose of 
opening or extending a street can be assessed back upon the abut¬ 
ting property, without inquiry in any form as to the special ben¬ 
efits received by the owner, the result will be more injurious to the 
owner than if he had been required, in the first instance, to open 
the street at his own cost, without compensation in respect of the 
land taken for the street; for, by opening the street at his own 
cost, he might save at least the expense attending formal proceed¬ 
ings of condemnation. It cannot be that any such result is con¬ 
sistent with the principles upon which rests the power to make 
special assessments upon property in order to meet the expense of 
public improvements in the vicinity of such property. 

The views we have expressed are supported by other adjudged 
cases, as well as by reason, and by the principles which must be 
recognized as essential for the protection of private property 
against the arbitrary action of government. The importance of 
the question before us renders it appropriate to refer to some of 
those cases. 

In Agens v. Mayor, etc., of Newark, 37 N. J. Law, 416, 420-423, 
18 Am. Rep. 729, the question arose as to the validity of an assess¬ 
ment of the expenses incurred in repairing the roadbed of a portion 
of one of the streets of the city of Newark. The assessment was 
made in conformity to a statute that undertook to fix, at the mere 
will of the legislature, the ratio of expense to be put upon the 
owners of property along the line of the improvement. Chief Jus¬ 
tice Beasley, speaking for the court of errors and appeals, said: 
“The doctrine that it is competent for the legislature to direct the 
expense of opening, paving, or improving a public street, or at 
least some part of such .expense, to be put as a special burthen 
on the property in the neighborhood of such improvement, cannot, 
at this day, be drawn in question. There is nothing in the consti¬ 
tution of this state that requires that all property in the state, or 
in any particular subdivision of the state, must be embraced in 
the operation of every law levying a tax. That the effect of such 
laws may not extend beyond certain prescribed limits is perfectly 
indisputable. It is upon this principle that taxes raised in coun¬ 
ties, townships, and cities are vindicated. But, while it is thus 
clear that the burthen of a particular tax may be placed exclusive¬ 
ly on any political district to whose benefit such tax is to inure, it 
seems to me it is equally clear that, when such burthen is sought 


318 


POWER OP TAXATION 


to be imposed on particular lands, not in themselves constituting 
a political subdivision of the state, we at once approach the line 
which is the boundary between acts of taxation and acts of confis¬ 
cation. I think it impossible to assert, with the least show of rea¬ 
son, that the legislative right to select the subject of taxation is 
not a limited right. For it would seem much more in accordance 
with correct theory to maintain that the power of selection of the 
property to be taxed cannot be contracted to narrower bounds than 
the political district within which it is to operate, than that such 
power is entirely illimitable. If such prerogative has no trammel 
or circumscription, then it follows that the entire burthen of one 
of these public improvements can be placed, by the force of the 
legislative will, on the property of a few enumerated citizens, or 
even on that of a single citizen. In a government in which the 
legislative power is not omnipotent, and in which it is a fundamen¬ 
tal axiom that private property cannot be taken without just com¬ 
pensation, the existence of an unlimited right in the lawmaking 
power to concentrate the burthen of tax upon specified property 
does not exist. If a statute should direct a certain street in a city 
to be paved, and the expense of such paving to be assessed on the 
houses standing at the four corners of such street, this would not 
be an act of taxation, and it is presumed that no one would assert 
it to be such. If this cannot be maintained, then it follows that it 
is conceded that the legislative power in question is not completely 
arbitrary. It has its limit, and the only inquiry is where that limit 
is to be placed.” 

After referring to a former decision of the same court, in which 
it was said that special assessments could be sustained upon the 
theory that the party assessed was locally and peculiarly benefited 
above the ordinary benefit which as one of the community he re¬ 
ceived in all public improvements, the opinion proceeds: “It fol¬ 
lows, then, that these local assessments are justifiable on the 
ground above,—that the locality is especially to be benefited by 
the outlay of the money to be raised. Unless this is the case, no 
reason can be assigned why the tax is not general. An assessment 
laid on property along a city street for an improvement made in 
another street, in a distant part of the same city, would be univer¬ 
sally condemned, both on moral and legal grounds. And yet there 
is no difference between such an extortion and the requisition upon 
a landowner to pay for a public improvement over and above the 
exceptive benefit received by him. It is true that the power of 
taxing is one of the high and indispensable prerogatives of the gov¬ 
ernment, and it can be only in cases free from all doubt that its 
exercise can be declared by the courts to be illegal. But such 
a case, if it can ever arise, is certainly presented when a property 
is specified, out of which a public improvement is to be paid for 


CLASSIFICATION FOR TAXATION 


319 


in excess of the value specially imparted to it by such improve¬ 
ment. As to such excess, I cannot distinguish an act exacting its 
payment from the exercise of the power of eminent domain. In 
case of taxation the citizen pays his quota of the common burthen. 
When his land is sequestered for the public use, he contributes 
more than such quota, and this is the distinction between the effect 
of the exercise of the taxing power and that of eminent domain. 
When, then, the overplus beyond benefits from these local im¬ 
provements is laid upon a few landowners, such citizens, with re¬ 
spect to such overplus, are required to defray more than their share 
of the public outlay, and the coercive act is not within the proper 
scope of the power to tax.” * ^ * 

The present case is not one in which (as in most of the cases 
brought to enjoin the collection of taxes or the enforcement of 
special assessments) it can be plainly or clearly seen, from the 
showing made by the pleadings, that a particular amount, if no 
more, is due from the plaintiff, and which amount should be paid 
or tendered before equity would interfere. It is rather a case in 
which the entire assessment is illegal. In such a case it was not 
necessary to tender, as a condition of relief being granted to the 
plaintiff, any sum, as representing what she supposed, or might 
guess, or was willing to concede, was the excess of cost over any 
benefits accruing to the property. She was entitled, without mak¬ 
ing such a tender, to ask a court of equity to enjoin the enforce¬ 
ment of a rule of assessment that infringed upon her constitutional 
rights. ^ ^ [Parsons v. Dist. of Columbia, 170 U. S. 45, 18 

Sup. Ct. 521, 42 L. Ed. 943, and Spencer v. Merchant, 125 U. S. 
345, 8 Sup. Ct. 921, 31 E. Ed. 763, are here discussed and held not 
inconsistent with this opinion.] 

We have considered the question presented for our determina¬ 
tion with reference only to the provisions of the national Constitu¬ 
tion. But we are also of opinion that, under any view of that 
question different from the one taken in this opinion, the require¬ 
ment of the Constitution of Ohio that compensation be made for 
private property taken for public use, and that such compensation 
must be assessed “without deduction for benefits to any property 
of the owner,” would be of little practical value, if, upon the open¬ 
ing of a public street through private property, the abutting prop¬ 
erty of the owner, whose land was taken for the street, can, under 
legislative authority, be assessed, not only for such amount as 
will be equal to the benefits received, but for such additional 
amount as will meet the excess of expense over benefits. 

The judgment of the circuit court must be affirmed, upon the 
ground that the assessment against the plaintiff’s abutting prop¬ 
erty was under a rule which excluded any inquiry as to special 
benefits, and the necessary operation of which was, to the extent 
of the excess of the cost of opening the street in question over any 


320 


POWER OF TAXATION 


Special benefits accruing to the abutting property therefrom, to 
take private property for public use without compensation. 

It is so ordered. 

Mr. Justice BrFweJr, dissenting. * * suggestion that 

such an assessment be declared void, because the rule of assess¬ 
ment is erroneous, implies that it is prima facie erroneous to cast 
upon property abutting upon an improvement the cost thereof; 
that a legislative act casting upon such abutting property the full 
cost of an improvement is prima facie void; that, being prima 
facie void, the owner of any property so abutting on the improve¬ 
ment may obtain a decree of a court of equity canceling in toto the 
assessment, without denying that his property is benefited by the 
improvement, or paying, or offering to pay, or expressing a will¬ 
ingness to pay, any sum which may be a legitimate charge upon 
the property for the value of the benefit to it by such improvement. 

In this case no tender was made of any sum, no offer to pay the 
amount properly chargeable for benefits, there was no allegation 
or testimony that the legislative judgment as to the area benefited, 
or the amount of the benefit, was incorrect, or that other prop¬ 
erty was also benefited; and the opinion goes to the extent of 
holding that the legislative determination is not only not conclu¬ 
sive, but also is not even prima facie sufficient, and that in all 
cases there must be a judicial inquiry as to the area in fact ben¬ 
efited. We have often held the contrary, and, I think, should ad¬ 
here to those oft-repeated rulings. 

[Gray and Shiras, JJ., also dissented.] 


KEL'LY V. PITTSBURGH. 

(Supreme Court of United States, 1881. 104 U. S. 78, 26 L. Ed. 658.) 

[Error to the Supreme Court of Pennsylvania. By authority of 
the legislature, the township of Collins in Alleghany county was 
annexed to the city of Pittsburgh. Kelly owmed 80 acres of land 
therein, which was assessed at a very high rate for the municipal 
taxes of the city. An injunction against the collection of such 
taxes was denied him in the lower courts, and the denial affirmed 
by the state Supreme Court. Other facts appear in the opinion.] 

Mr. Justice MieeFr. * * * main argument for the 

plaintiff in error—the only one to which we can listen—is that the 
proceeding in regard to the taxes assessed on his land deprives him 
of his property without due process of law. 

It is not asserted that in the methods by which the value of his 
land was ascertained for the purpose of this taxation there was any 
departure from the usual modes of assessment, nor that the man¬ 
ner of apportioning and collecting the tax was unusual or material- 



CLASSIFICATION FOR TAXATION 


321 


ly different from that in force in all communities where land is 
subject to taxation. In these respects there is no charge that the 
method pursued is not due process of law. Taxes have not, as a 
general rule, in this country since its independence, nor in England 
before that time, been collected by regular judicial proceedings. 
The necessities of government, the nature of the duty to be per¬ 
formed, and the customary usages of the people, have established 
a different procedure, which in regard to that matter, is, and al¬ 
ways has been, due process of law. The tax in question was as¬ 
sessed, and the proper officers were proceeding to collect it in this 
way. 

The distinct ground on which this provision of the Constitution 
of the United States is invoked is, that as the land in question is, 
and always has been, used as farm land, for agricultural use only, 
subjecting it to taxation for ordinary city purposes deprives the 
plaintiff in error of his property without due process of law. It 
is alleged, and probably with truth, that the estimate of the value 
of the land for taxation is very greatly in excess of its true value. 
Whether this be true or not we cannot here inquire. We have so 
often decided that we cannot review and correct the errors and 
mistakes of the state tribunals on that subject, that it is only neces¬ 
sary to refer to those decisions without a restatement of the argu¬ 
ment on which they rest. State Railroad Tax Cases, 92 U. S. 575, 
23 L. Ed. 663; Kennard v. Louisiana, 92 U. S. 480, 23 L. Ed. 478; 
Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Kirtland v. 
Hotchkiss, 100 U. S. 491, 25 L. Ed. 558; Missouri v. Lewis, 101 
U. S. 22, 25 L. Ed. 989; National Bank v. Kimball, 103 U. S. 732, 
26 L. Ed. 469. 

But, passing from the question of the administration of the law 
of Pennsylvania by her authorities, the argument is, that in the 
matter already mentioned the law itself is in conflict with the Con¬ 
stitution. It is not denied that the legislature could rightfully en¬ 
large the boundary of the city of Pittsburgh so as to include the 
land. If this power were denied, we are unable to see how such 
denial could be sustained. What portion of a state shall be with¬ 
in the limits of a city and be governed by its authorities and its 
laws has always been considered to be a proper subject of legisla¬ 
tion. How thickly or how sparsely the territory within a city 
must be settled is one of the matters within legislative discretion. 
Whether territory shall be governed for local purposes by a coun¬ 
ty, a city, or a township organization, is one of the most usual and 
ordinary subjects of state legislation. 

It is urged, however, with much force, that land of this char¬ 
acter, which its owner has not laid off into town lots, but insists on 
using for agricultural purposes, and through which no streets are 
run or used, cannot be, even by the legislature, subjected to the 
Haul Cases Const.L.—^21 


322 


POWER OF TAXATION 


taxes of a city,—the water tax, the gas tax, the street tax, and oth¬ 
ers of similar character. The reason for this is said to be that 
such taxes are for the benefit of those in a city who own property 
within the limits of such improvements, and who use or might use 
them if they choose, while he reaps no such benefit. Cases are 
cited from the higher courts of Kentucky and Iowa where this 
principle is asserted, and where those courts have held that farm 
lands in a city are not subject to the ordinary city taxes. It is no 
part of our duty to inquire into the grounds on which those courts 
have so decided. They are questions which arise between the citi¬ 
zens of those states and their own city authorities, and afford no 
rule for construing the Constitution of the United States. 

We are also referred to the case of Loan Association v. Topeka, 
20 Wall. 655, 22 T. Ed. 455, which asserts the doctrine that taxation, 
though sanctioned by state statutes, if it be [not] for a public use, 
is an unauthorized taking of private property. We are unable to 
see that the taxes levied on this property were not for a public 
use. Taxes for schools, for the support of the poor, for protection 
against fire, and for water-works, are the specific taxes found in the 
list complained of. We think it will not be denied by any one that 
these are public purposes in which the whole community have an 
interest, and for which, by common consent, property owners 
everywhere in this country are taxed. There are items styled city 
tax and city buildings, which, in the absence of any explanation, 
we must suppose to be for the good government of the city, and 
for the construction of such buildings as are necessary for munici¬ 
pal purposes. Surely these are all public purposes; and the mon¬ 
ey so to be raised is for public use. No item of the tax assessed 
against the plaintiff in error is pointed out as intended for any oth¬ 
er than a public use. 

It may be true that he does not receive the same amount of bene¬ 
fit from some or any of these taxes as do citizens living in the 
heart of the city. It probably is true, from the evidence found in 
this record, that his tax bears a very unjust relation to the benefits 
received as compared with its amount. But who can adjust with 
precise accuracy the amount which each individual in an organized 
civil community shall contribute to sustain it, or can insure in this 
respect absolute equality of burdens, and fairness in their distribu¬ 
tion among those who must bear them? We cannot say judicially 
that Kelly received no benefit from the city organization. These 
streets, if they do not penetrate his farm, lead to it. The water¬ 
works will probably reach him some day, and may be near enough 
to him now to serve him on some occasion. The schools may re¬ 
ceive his children, and in this regard he can be in no worse condi¬ 
tion than those living in the city who have no children, and yet 
who pay for the support of the schools. Every man in a county, a 
town, a city, or a state is deeply interested in the education of the 


GLASSIFICATION FOB TAXATION 


323 


children of the community, because his peace and quiet, his happi¬ 
ness and prosperity, are largely dependent upon the intelligence 
and moral training which it is the object of public schools to sup¬ 
ply to the children of his neighbors and associates, if he has none 
himself. The officers whose duty it is to punish and prevent crime 
are paid out of the taxes. Has he no interest in maintaining them, 
because he lives further from the court-house and police-station 
than some others? 

Clearly, however, these are matters of detail within the discre¬ 
tion, and therefore the power, of the law-making body within 
whose jurisdiction the parties live. This court cannot say in such 
cases, however great the hardship or unequal the burden, that the 
tax collected for such purposes is taking the property of the tax¬ 
payer without due process of law. * * * 

Judgment affirmed. 


324 


RIGHT OF EMINENT DOMAIN 


RIGHT OF EMINENT DOMAIN 
L In General ^ 


FAIRCHILD V. ST. PAUL. 

(Supreme Court of Minnesota, 1891. 46 Minn. 540, 49 N. W. 325.) 

[Appeal by plaintiffs from a judgment of the Ramsey County 
District Court. The facts appear in the opinion.] 

Mitch^dd, J. This was an action to recover damages for certain 
alleged acts of trespass in removing stone from the premises of the 
plaintiffs. The defendant justified the acts on the ground that it 
had acquired a title to the land for the purposes of a public street. 
The case was tried upon the theory that its decision depended on 
the question whether or not the city of St. Paul had acquired a title 
in fee, and by stipulation it was agreed that the court should deter¬ 
mine two questions, viz.: First, had the defendant the power and 
right to condemn the fee of land for street purposes? and, if so, 
second, had the defendant duly condemned, for such purposes, the 
fee of the land in question? 

1. The main contention of the plaintiffs*, upon the argument was, 
to use their own language, “that the public exigencies do not de¬ 
mand the taking and condemnation of the absolute fee-simple title 
to land for the purpose of highways and streets; that the public 
wants are supplied by the enjoyment of an easement; and that any 
act of the legislature which assumes and attempts to authorize a 
municipality to take and condemn the absolute fee-simple title to 
land for such purposes is unconstitutional and void.^’ More briefly 
stated, the proposition is that the legislature cannot authorize the 
taking of any greater estate in land for public use than is neces¬ 
sary; that an estate in fee is not necessary for the purposes of a 
street; therefore the legislature cannot authorize the taking of 
such an estate for such purposes. While we have given the ques¬ 
tion the careful examination due to the elaborate brief and very 
earnest argument of the learned counsel, yet it has never seemed 
to us that there was anything in his contention. 

In this case it must be conceded that the legislature, if it had the 
power to do so, has given the city of St. Paul authority to condemn 
an estate in fee for street purposes; the language of the charter 
being: “In all cases the land taken and condemned in the manner 
aforesaid (for streets) shall be vested absolutelv in the citv <^f St. 
Paul in fee-simple.” Mun. Code 1884, § 153 (Sp. Laws 1874, p. 

3 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 172-175, 180. 



IN GENERAL 


325 


59, § 17). There is nothing better settled than that, the power of 
eminent domain being an incident of sovereignty, the time, man¬ 
ner, and occasion of its exercise are wholly in the control and dis¬ 
cretion of the legislature, except as restrained by the Constitution. 
It rests in the wisdom of the legislature to determine when and in 
what manner the public necessities require its exercise; and with 
the reasonableness of the exercise of that discretion the courts will 
not interfere. Wilkin v. First Div., etc., R. Co., 16 Minn. 271 (Gil. 
244); Weir v. St. Paul, S. & T. F. R. Co., 18 Minn. 155 (Gil. 139). 
As the legislature is the sole judge of the public necessity which 
requires or renders expedient the exercise of the power of eminent 
domain, so it is the exclusive judge of the amount of land, and of 
the estate in land, which the public end to be subserved requires 
shall be taken. The only limitation—at least, the only one applica¬ 
ble to a case like the present—which the Constitution imposes up¬ 
on the exercise of the right of eminent domain by the legislature 
is that private property shall not be taken for public use without 
just compensation therefor first paid or secured. Of course, there 
is the further limitation, necessarily implied, that the use shall be 
a public one; upon which question the determination of the legisla¬ 
ture is not conclusive upon the courts. But, when the use is pub¬ 
lic, the necessity or expediency of appropriating any particular 
property is not a subject of judicial cognizance. Consequently, if 
in the legislative judgment it is expedient to do so, it has the pow¬ 
er expressly to authorize a municipal corporation compulsorily to 
acquire the absolute fee-simple to lands of private persons con¬ 
demned for street or any other public purpose. The authorities are 
so numerous and uniform to this effect that an extended citation of 
them is unnecessary. See, however. Dill. Mun. Corp. § 589; Cool¬ 
ey, Const. Dim. 688; Lewis, Em. Dom. 277; Elliott, Roads & S. 
172; Mills, Em. Dom. §§ 50, 51; Boom Co. v. Patterson, 98 U. S. 
403, 406, 25 L. Ed. 206; Sweet v. Buffalo, etc., Ry. Co., 79 N. Y. 
293, 299. 

It is often laid down as the law that the taking of property must 
always be limited to the necessity of the case, and, consequently, 
no more can be appropriated in any instance than is needed for the 
particular use for which the appropriation is made. But it will be 
found that this is almost invariably said, not in discussing the ex¬ 
tent of the power of the legislature, but with reference to the 
construction of statutes granting authority to exercise the right 
of eminent domain, and where the authority to take a certain quan¬ 
tity of land or a particular estate therein depended, not upon an 
express grant of power to do so, but upon the existence of an al¬ 
leged necessity, from which the disputed power is to be implied. 
This distinction is clearly brought out by Justice Cornell in Mil¬ 
waukee & St. Paul Ry. Co. v. City of Faribault, 23 Minn. 167. Up¬ 
on the principle that statutes conferring compulsory powers to take 


326 


RIGHT OF EMINENT DOMAIN 


private property are to be strictly construed, it follows that, when 
the estate or interest to be taken is not defined by the legislature, 
only such an estate or interest can be taken as is necessary to ac¬ 
complish the purpose in view, and, when an easement is sufficient, 
no greater estate can be taken. It is on this principle that where 
the legislature has authorized the taking of land for the purposes 
of streets, without defining the estate that may be taken, or ex¬ 
pressly authorizing the taking of the fee, it is held that only an 
easement can be taken. This is construed, under such statutes, to 
be the extent of the grant of authority; but no ’Cvell-considered 
case can be found which holds that the legislature might not au¬ 
thorize the taking of the fee, if it deemed it expedient. ♦ * jk 

Judgment affirmed. 


LONG ISLAND WATER SUPPLY CO. v. BROOKLYN. 

(Supreme Court of United States, 1897. 166 U. S. 685, 17 Sup. Ct. 718, 

41 L. Ed. 1165.) 

[Error to Supreme Court of New York. The Long Island Wa¬ 
ter Supply Company resisted the taking of its property, franchises, 
and contracts by eminent domain by the city of Brooklyn, for the 
reasons stated in the opinion below. The Court of Appeals upheld 
the judgment of the lower courts in favor of the condemnation, and 
the state Supreme Court entered final judgment against the com¬ 
pany, from which this writ of error was taken.] 

Mr. Justice Bri;we;r. * * * 'phg contention of plaintiff in 

error is that the proceedings had under the statute which resulted 
in the judgment of condemnation violate section 10, art. 1, of the 
Constitution of the United States, which forbids any state to pass 
a law impairing the obligation of contracts, and were not “due 
process of law,” as required by the fourteenth amendment. 

With reference to the first part of this contention, it is said that 
in 1881 the town of New Lots made a contract with the water- 
supply company by which for each and every year during the term 
of 25 years it covenanted to pay to the company so much per 
hydrant for hydrants furnished and supplied by it; that the act of 
annexation continued the burden of this obligation upon the ter¬ 
ritory within the limits of the town, although thereafter the town, 
as a separate municipality, ceased to exist, and the territory be¬ 
came simply a ward of the city of Brooklyn; that the condemna¬ 
tion proceedings destroyed this contract, and released the terri¬ 
tory from any obligation to pay the stipulated hydrant rental; that 
a state or municipality cannot do indirectly what it cannot do di¬ 
rectly; that, as the municipality could not, by any direct act, re¬ 
lease itself from any of the obligations of its contract, it could not 
accomplish the same result by proceedings in condemnation. 



IN GENERAL 


327 


We cannot yield our assent to this contention. All private prop¬ 
erty is held subject to the demands of a public use. The constitu¬ 
tional guaranty of just compensation is not a limitation of the 
power to take, but only a condition of its exercise. Whenever pub¬ 
lic uses require, the government may appropriate any private prop¬ 
erty on the payment of just compensation. That the supply of wa¬ 
ter to a city is a public purpose cannot be doubted, and hence the 
condemnation of a water-supply system must be recognized as 
within the unquestioned limits of the power of eminent domain. 
It matters not to whom the water-supply system belongs, individ¬ 
ual or corporation, or what franchises are connected with it; all 
may be taken for public uses upon payment of just compensation. 
It is not disputed by counsel that, were there no contract between 
the company and. the town, the waterworks might be taken by 
condemnation. And so the contention is, practically, that the ex¬ 
istence of the contract withdraws the property, during the life of 
the contract, from the scope of the power of eminent domain, be¬ 
cause taking the tangible property will prevent the company from 
supplying water, and therefore operate to relieve the town from 
the payment of hydrant rentals. In other words, the prohibition 
against a law impairing the obligation of contracts stays the power 
of eminent domain in respect to property which otherwise could be 
taken by it. 

Such a decision would be far-reaching in its effects. There is 
probably no water company in the land which has not some sub¬ 
sisting contract with a municipality which it supplies, and within 
which its works are located; and a ruling that all those properties 
are beyond the reach of the power of eminent domain during the 
existence of those contracts is one which, to say the least, would 
require careful consideration before receiving judicial sanction. 
The fact that this particular contract is for the payment of money 
for hydrant rental is not vital. Every contract is equally within 
the protecting reach of the prohibitory clause of the Constitution. 
The charter of a corporation is a contract, and its obligations can¬ 
not be impaired. So it would seem to follow, if plaintiff in error’s 
contention is sound, that the franchises of a corporation could not 
be taken by condemnation, because thereby the contract created by 
the charter is impaired. The privileges granted to the corporation 
are taken away, and the obligation of the corporation to perform is 
also destroyed. ^ ^ * 

The true view is that the condemnation proceedings do not im¬ 
pair the contract, do not break its obligations, but appropriate it, 
as they do the tangible property of the company, to public uses. 
* * * The case of West River Bridge Co. v. Dix, 6 How. 507, 
12 L. Ed. 535, is in point. * * ’i' [This involved the condemna¬ 
tion of a toll bridge with an exclusive franchise and its conversion 
into a free bridge by the state of Vermont. The bridge company 


328 


RIGHT OF EMINENT DOMAIN 


took a writ of error to the federal Supreme Court, alleging the ob¬ 
ligation of its franchise contract was impaired.] This contention 
was overruled, and in the course of the opinion it was observed: 

“No state, it is declared, shall pass a law impairing the obliga¬ 
tion of contracts; yet, with this concession constantly yielded, it 
cannot be justly disputed that in every political sovereign com¬ 
munity there inheres necessarily the right and the duty of guard¬ 
ing its own existence, and of protecting and promoting the inter¬ 
ests and welfare of the community at large. This power and this 
duty are to be exerted not only in the highest acts of sovereignty, 
and in the external relations of governments; they reach and com¬ 
prehend likewise the interior polity and relations of social life, 
which should be regulated with reference to the advantage of the 
whole society. This power, denominated the 'eminent domain of 
the state,’ is, as its name imports, paramount to all private rights 
vested under the government, and these last are, by necessary im¬ 
plication, held in subordination to this power, and must yield in 
every instance to its proper exercise. * * * Now, it is unde¬ 

niable that the investment of property in the citizen by the govern¬ 
ment, whether made for a pecuniary consideration or founded on 
conditions of civil or political duty, is a contract between the state, 
or the government acting as its agent, and the grantee; and both 
the parties thereto are bound in good faith to fulfill it. But into 
all contracts, whether made between states and individuals or be¬ 
tween individuals only, there enter conditions which arise, not out 
of the literal terms of the contract itself. They are superinduced 
by the pre-existing and higher authority of the laws of nature, or 
nations, or of the community to which the parties belong. They 
are always presumed, and must be presumed, to be known and rec¬ 
ognized by all, are binding upon all, and need never, therefore, be 
carried into express stipulation, for this could add nothing to their 
force. Every contract is made in subordination to them, and must 
yield to their control, as conditions inherent and paramount, wher¬ 
ever a necessity for their execution shall occur. Such a condition 
is the right of eminent domain. This right does not operate to im¬ 
pair the contract affected by it, but recognizes its obligation in the 
fullest extent, claiming only the fulfillment of an essential and in¬ 
separable condition. * * * a distinction has been attempted, 

in argument, between the power of a government to appropriate 
for public uses property which is corporeal, or may be said to be in 
being, and the like power in the government to resume or extin¬ 
guish a franchise. The distinction thus attempted we regard as a 
refinement which has no foundation in reason, and one that, in 
truth, avoids the true legal or constitutional question in these 
causes; namely, that of the right in private persons, in the use or 
enjoyment of their private property, to control, and actually to 
prohibit, the power and duty of the government to advance and 


PUBLIC PURPOSE 


329 


protect the general good. We are aware of nothing peculiar to a 
franchise which can class it higher, or render it more sacred, than 
other property. A franchise is property, and nothing more. It is 
incorporeal property, and is so defined by Justice Blackstone, when 
treating, in his second volume (chapter 3, p. 20), of the Rights of 
Things.” 

See, also, Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. 71, 
83, 14 L. Ed. 55; Boston & L. R. Corp. v. Salem & L. R. Co., 2 
Gray (Mass.) 1, 35, 36. * ♦ ♦ 

Judgment affirmed. 


II. Public Purpose • 


TALBOT V. HUDSON. 

(Supreme Judicial Court of Massachusetts, 1860. 16 Gray, 417.) 

[Hearing, upon a bill and answer, of a motion to dissolve a tem¬ 
porary injunction issued ex parte by a single judge upon the filing 
of the bill. The pleadings disclosed that the plaintiffs owned valu¬ 
able mill, dam, and water rights upon the Concord river, and had 
erected and were operating by the water power thereof large and 
valuable mills, and had acquired a legal right to flood certain tracts 
of territory by the backwater from their dams; that a statute had 
authorized commissioners to reduce the height of said dams 33 
inches, with a view to draining extensive meadows along the Con¬ 
cord and Sudbury rivers now overflowed by said backwater, 
which would destroy or render almost valueless said water power, 
dams, and mills, though compensation was to be made therefor; 
and that defendants, as such commissioners, were proposing to act 
under this statute. Defendants also demurred to the bill, which 
alleged the unconstitutionality of the statute. Other facts appear 
in the opinion.] 

Bigelow, C. J. It is quite obvious that the first step 

in this inquiry is to ascertain, if we can, under what head or branch 
of legislative power or authority the act in question falls. The in¬ 
tention of the legislature in this respect must be gathered mainly 
from the terms of the statute. There is no express declaration of 
the objects contemplated by it, but they are left to implication. 
Looking to the general structure of the act and the nature of its 
provisions, we cannot doubt that it was intended as an exercise of 
the right of eminent domain. It is similar to other legislative acts 
which authorize the taking of private property for a public use. It 

2 For discussion of principles, see Black, Const. Law (3d Ed.l §§ 177-179. 




330 


RIGHT OF EMINENT DOMAIN 


expressly authorizes the taking and removal of the dam by a board 
of public officers appointed for this specific purpose; it provides the 
same remedy in behalf of persons injured by such taking and re¬ 
moval as is given in case of damages occasioned by the laying out 
of highways; it afifords to the party aggrieved by the award of the 
commissioners a trial by jury, and confers on this court the power 
to hear and determine all questions of law arising in the proceed¬ 
ings, and to set aside the verdict of the jury for sufficient cause. 
These provisions are inconsistent with the idea that the act was 
framed for the purpose of exercising the general police or superin¬ 
tending power over private property, which is vested in the leg¬ 
islature, or in order to prohibit a use of it which was deemed in¬ 
jurious to or inconsistent with the rights and interests of the 
public. If such were the object of the statute, there would be no 
necessity for the appointment of commissioners to take down and 
remove the dam, or for the provisions making compensation to 
those injured in their property thereby. Such enactments would 
be unusual in a statute intended only for a prohibition and re¬ 
straint upon the appropriation or use of private property by its 
owners; but are the necessary and ordinary provisions when the 
legislature intend to exercise the right to take it for a supposed 
public use. Thacher v. Dartmouth Bridge, 18 Pick. 501; Common¬ 
wealth V. Tewksbury, 11 Mete. 55. 

Such being the manifest design of the legislature in passing the 
act in question, we are brought directly to a consideration of the 
objections urged by the plaintiffs against its validity. The first 
and principal one is that it violates the tenth article of the Dec¬ 
laration of Rights, because it authorizes the taking and appropria¬ 
tion of private prpoerty to a use which is not of a public nature. 

In considering this objection, we are met in the outset with the 
suggestion, that it is the exclusive province of the legislature to 
determine whether the purpose or object for which property is 
taken is a public use, and that it is not within the province of the 
judicial department of the government to revise or control the will 
or judgment of the legislature upon the subject, when expressed 
in the form of a legal enactment. But this position seems to us to 
be obviously untenable. The provision in the Constitution, that 
no part of the property of an individual can be taken from him or 
applied to public uses without his consent or that of the legisla¬ 
ture, and that when it is appropriated to public uses he shall receive 
a reasonable compensation therefor, necessarily implies that it can 
be taken only for such a use, and is equivalent to a declaration that 
it cannot be taken and appropriated to a purpose in its nature pri¬ 
vate, or for the benefit of a few individuals. In this view, it is a 
direct and positive limitation upon the exercise of legislative pow¬ 
er, and any act which goes beyond this limitation must be uncon¬ 
stitutional and void. No one can doubt that if the legislature 


PUBLIC PURPOSE 


331 


should by statute take the property of A and transfer it to B, it 
would transcend its constitutional power. In all cases, therefore, 
where this power is exercised, it necessarily involves an inquiry 
into the rightful authority of the legislature under the organic 
law. * 5|c 

But it is to be borne in mind, that in determining the question 
whether a statute is within the legitimate sphere of legislative ac¬ 
tion, it is the duty of courts to make all reasonable presumptions 
in favor of its validity. * * * In many cases, there can be no 

difficulty in determining whether an appropriation of property is 
for a public or private use. If land is taken for a fort, a canal, or 
a highway, it would clearly fall within the first class; if it is trans¬ 
ferred from one person to another or to several persons solely for 
their peculiar benefit and advantage, it would as clearly come with¬ 
in the second class. But there are intermediate cases where public 
and private interests are blended together, in which it becomes 
more difficult to decide within which of the two classes they may 
be properly said to fall. There is no fixed rule or standard by 
which such cases can be tried and determined. Each must neces¬ 
sarily depend upon its own peculiar circumstances. In the pres¬ 
ent case there can be no doubt that every owner of meadow land 
bordering on these rivers will be directly benefited to a greater or 
less extent by the reduction of the height of the plaintiffs’ dam. 
The act is therefore in a certain sense for a private use, and enures 
directly to the individual advantage of such owners. But this is 
by no means a decisive test of its validity. Many enterprises of 
the highest public utility are productive of great and immediate 
benefits to individuals. A railroad or canal may largely enhance 
the value of private property situated at or near its termini; but 
it is not for that reason any less a public work, for the construc¬ 
tion of which private property may well be taken. We are there¬ 
fore to look further into the probable operation and effect of the 
statute in question, in order to ascertain whether some public in¬ 
terest or benefit may not be likely to accrue from the execution of 
the power conferred by it upon the defendants. If any such can 
be found, then we are bound to suppose that the act was passed in 
order to effect it. We are not to judge of the wisdom or expe¬ 
diency of exercising the power to accomplish the object. The leg¬ 
islature are the sole and exclusive judges whether the exigency 
exists which calls on them to exercise their authority to take pri¬ 
vate property. If a use in its nature public can be subserved by 
the appropriation of a portion of the plaintiffs’ dam in the manner 
provided by this act, it was clearly within the constitutional au¬ 
thority of the legislature to take it, and in the absence of any 
declared purpose, we must assume that it was taken for such legit¬ 
imate and authorized use. 


332 


RIGHT OF EMINENT DOMAIN 


The geographical features of the Concord and Sudbury rivers 
are properly within the judicial cognizance of the court. They are 
stated in detail in the opinion of the court in Sudbury Meadows v. 
Middlesex Canal, 23 Pick. 45. From that case and an inspection 
of the map, it appears that these two rivers, forming parts of the 
same stream, pass for a distance exceeding twenty miles through 
a tract of country, forming their banks or borders, consisting 
chiefly of meadows comprising many hundreds of acres; that 
throughout this extent the waters are very sluggish, having only 
a slight fall, until they reach the plaintif¥s’ dam. It might well 
be supposed that the necessary effect of an obstruction in a stream 
of this nature would be to cause the waters to flow back in the 
bed of the rivers, to fill up their courses or channels, to overflow 
their sides, and to inundate to a great extent the adjacent land, 
which is naturally low and level, and thus to render it unfit for 
agricultural purposes and deprive it of its capacity to produce any 
profitable or useful vegetation. The improvement of so large a 
territory, situated in several different towns and owned by a great 
number of persons, by draining off the water and thereby render¬ 
ing the land suitable for tillage, which could not otherwise be use¬ 
fully improved at all, would seem to come fairly within the scope 
of legislative action, and not to be so devoid of all public utility 
and advantage as to make it the duty of this court to pronounce a 
statute, which might well be designed to effect such a purpose, in¬ 
valid and unconstitutional. The act would stand on a different 
ground, if it appeared that only a very few individuals or a small 
adjacent territory were to be benefited by the taking of private 
property. But such is not the case here. The advantages which 
may result from the removal of the obstruction caused by the 
plaintiffs’ dam are not local in their nature, nor intended to be 
confined to a single neiglTb)orhood. They are designed to embrace 
a large section of land lying in one of the most populous and highly 
cultivated counties in the state, and by increasing the productive 
capacity of the soil to confer a benefit, not only on the owners of 
the meadows, but on all those who will receive the incidental ad¬ 
vantage arising from the development of the agricultural resources 
of so extensive a territory. 

It has never been deemed essential that the entire community 
or any considerable portion of it should directly enjoy or partici¬ 
pate in an improvement or enterprise, in order to constitute a 
public use, within the true meaning of these words as used in the 
Constitution. Such an interpretation would greatly narrow and 
cripple the authority of the legislature, so as to deprive it of the 
power of exerting a material and beneficial influence on the wel¬ 
fare and prosperity of the state. In a broad and comprehensive 
view, such as has been heretofore taken of the construction of this 
clause of the Declaration of Rights, everything which tends ta 


PUBLIC PURPOSE 


333 


enlarge the resources, increase the industrial energies, and promote 
the productive power of any considerable number of the inhab¬ 
itants of a section of the state, or which leads to the growth of 
towns and creation of new sources for the employment of private 
capital and labor, indirectly contributes to the general welfare 
and to the prosperity of the whole community. 

It is on this principle, that many of the statutes of this common¬ 
wealth by which private property has been heretofore taken and 
appropriated to a supposed public use are founded. Such legisla¬ 
tion has the sanction of precedents, coeval with the origin and 
adoption of the Constitution, and the principle has been so often 
recognized and approved as legitimate and constitutional that it 
has become incorporated into our jurisprudence. One of the earli¬ 
est and most familiar instances of the exercise of such power under 
the Constitution is to be found in St. 1795, c. 74, for the support 
and regulation of mills. By this statute the owner of a mill had 
power, for the purpose of raising a head of water to operate his 
mill, to overflow the land of proprietors above and thereby to take 
a permanent easement in the soil of another, to the entire de¬ 
struction of its beneficial use by him, on paying a suitable compen¬ 
sation therefor. Under the right thus conferred, the more direct 
benefit was to the owner of the mill only; private property was in 
effect taken and transferred from one individual for the benefit of 
another; and the only public use, which was thereby subserved, 
was the indirect benefit received by the community by the erection 
of mills for the convenience of the neighborhood, and the general 
advantage which accrued to trade and agriculture by increasing 
the facilities for traffic and the consumption of the products of the 
soil. Such was the purpose of this statute, as appears from the pre¬ 
ambles to the provincial Acts of 8 and 13 Anne, from which the 
statute of 1795 was substantially copied. It is thereby declared 
that the building of mills has been “serviceable for the public good 
and benefit of the town or considerable neighborhood.” Anc. 
Chart. 388, 404. 

In like manner, and for similar purposes, acts of incorporation 
have been granted to individuals with authority to create large mill 
powers for manufacturing establishments, by taking private prop¬ 
erty, even to the extent of destroying other mills and water priv¬ 
ileges on the same stream. Boston & Roxbury Mill Dam v. New¬ 
man, 12 Pick. 467, 23 Am. Dec. 622; Hazen v. Essex Co., 12 Cush. 
478; Commonwealth v. Essex Co., 13 Gray, 249. The main and 
direct object of these acts is to confer a benefit on private stock¬ 
holders who are willing to embark their skill and capital in the 
outlay necessary to carry forward enterprises which indirectly tend 
to the prosperity and welfare of the community. And it is be¬ 
cause they thus lead incidentally to the promotion of “one of the 
great public industrial pursuits of the commonwealth,” that they 


334 


RIGHT OF EMINENT DOMAIN 


have been heretofore sanctioned by this court, as well as by the 
legislature, as being a legitimate exercise of the right of eminent 
domain justifying the taking and appropriation of private prop¬ 
erty. Hazen v. Essex Co., 12 Cush. 475. 

It is certainly difficult to see any good reason for making a dis¬ 
crimination in this respect between different branches of industry. 
If it is lawful and constitutional to advance the manufacturing or 
mechanical interests of a section of the state by allowing individ¬ 
uals acting primarily for their own profit to take private property, 
there would seem to be little, if any, room for doubt as to the 
authority of the legislature, acting as the representatives of the 
whole people, to make a similar appropriation by their own imme¬ 
diate agents in order to promote the agricultural interests of a 
large territory. Indeed it would seem to be most reasonable, and 
consistent with the principle upon which legislation of this char¬ 
acter has been exercised and judicially sanctioned in this common¬ 
wealth, to hold that the legislature might provide that land which 
has been taken for a public use and subjected to a servitude or 
easement by which its value has been impaired and it has been 
rendered less productive, should be relieved from the burden, if 
the purpose for which it was so appropriated has ceased to be of 
public utility, and its restoration to its original condition, dis¬ 
charged of the incumbrance, will tend to promote the interest of 
the community by contributing to the means of increasing the 
general wealth and prosperity. If the right of a mill owner to 
raise a dam and flow the land of adjacent proprietors has ceased 
to be of any public advantage, and tends to retard prosperity and 
to impoverish the neighborhood, and the withdrawal of the water 
from the land by taking down the dam and rendering the land 
available for agricultural purposes would be so conducive to the 
interests of the community as to render it a work of public utility, 
there is no good reason why the legislature may not constitution¬ 
ally exercise the power to take down the dam on making suitable 
compensation to the owner. It would only be to apply to the 
millowner for the benefit of agriculture the same rule which had 
been previously applied to the landowner for the promotion of 
manufacturing and mechanical pursuits. 

Nor are we without precedent for acts of legislation by which 
private property has been taken for the purpose of improving land 
and rendering it fertile and productive. The St. of 1795, c. 62, for 
the improvement of meadows, swamps, and low lands, recognizes 
the right of taking private property for the purpose of redeeming 
lands from the effects of stagnant water and of being overflowed 
by obstructions in brooks and rivers. * ^ ^ For the injury 

thus occasioned to private property, a remedy is provided by the 
statute. But it is clearly an appropriation of private property pri¬ 
marily for the benefit of the owners of the meadows or low lands 


PUBLIC PURPOSE 


335 


which are intended to be improved, and where the public use or 
benefit which justifies such appropriation consists in the indirect 
advantage to the community, derived from the increase of the pro¬ 
ductive capacity of the soil and the promotion of the agricultural 
interests of the owners of the land. 

It was suggested at the argument, that there was an essential 
difference between the provisions of statutes for the improvement 
of meadows and low lands and that under consideration, because 
by the former it was provided that the damages should be paid 
by the parties benefited, whereas by the latter they are to be paid 
out of the public treasury. But we cannot see the force or bearing 
of this suggestion. The mode of compensating the party whose 
property is taken cannot affect the validity of the appropriation, 
so far as it depends on the question, whether it was taken for a 
public use. If the use is not in its nature public, the appropriation 
is invalid and unconstitutional, and the mode by which compen¬ 
sation to the owners of land taken is to be made is wholly imma¬ 
terial. It is only when property is taken for a purpose for which 
it may be constitutionally appropriated, that it becomes necessary 
to determine whether provision is made for compensation, suita¬ 
ble and adequate to furnish a remedy to the party injured. * * * 

Injunction dissolved. 


CLARK V. NASH. 

(Supreme Court of United States, 1905. 198 U. S. 361, 25 Sup. Ct. 676, 49 L. 

Ed. 1085, 4 Ann. Cas. 1171.) 

[Error to the Utah Supreme Court. Nash brought a statutory 
condemnation proceeding to obtain a right to convey water by an 
enlarged ditch across Clark’s land from Ft. Canyon creek to irri¬ 
gate Nash’s land. Nash’s land was arid without irrigation, and he 
owned the right to use enough water from said creek to irrigate 
his land; but owing to the conformation of the country this water 
could be brought upon his land only over Clark’s land, and only by 
enlarging a ditch already owned and used by Clark and located on 
Clark’s land. The Utah Supreme Court upheld a judgment of con¬ 
demnation of the right claimed, upon payment of $40 damages 
and the assumption by Nash of an obligation to bear his propor¬ 
tionate share of the expense of maintaining said ditch in the fu¬ 
ture.] 

Mr. Justice Peckham. The plaintiffs in error contend that the 
proposed use of the enlarged ditch across their land for the pur¬ 
pose of conveying water to the land of the defendant in error alone 
is not a public use, and that, therefore, the defendant in error has 
no constitutional or other right to condemn the land, or any por¬ 
tion of it, belonging to the plaintiffs in error, for that purpose. 



336 


RIGHT OF EMINENT DOMAIN 


They argue that, although the use of water in the state of Utah 
for the purposes of mining or irrigation or manufacturing may be 
a public use where the right to use it is common to the public, 
yet that no individual has the right to condemn land for the pur¬ 
pose of conveying water in ditches across his neighbor’s land, for 
the purpose of irrigating his own land alone, even where there is, 
as in this case, a state statute permitting it. 

In some states, probably in most of them, the proposition con¬ 
tended for by the plaintiffs in error would be sound. But whether 
a statute of a state permitting condemnation by an undividual for 
the purpose of obtaining water for his land or for mining should 
be held to be a condemnation for a public use, and, therefore, a 
valid enactment, may depend upon a number of considerations re¬ 
lating to the situation of the state and its possibilities for land cul¬ 
tivation, or the successful prosecution of its mining or other in¬ 
dustries. Where the use is asserted to be public, and the right to 
the individual to condemn land for the purpose of exercising such 
use is founded upon or is the result of some peculiar condition of 
the soil or climate, or other peculiarity of the state, where the right 
of condemnation is asserted under a state statute, we are always, 
where it can fairly be done, strongly inclined to hold with the state 
courts, when they uphold a state statute providing for such con¬ 
demnation. The validity of such statutes may sometimes depend 
upon many different facts, the existence of which would make a 
public use, even by an individual, where, in the absence of such 
facts, the use would clearly be private. Those facts must be gen¬ 
eral, notorious, and acknowledged in this state, and the state 
courts may be assumed to be exceptionally familiar with them. 
They are not the subject of judicial investigation as to their exist¬ 
ence, but the local courts know and appreciate them. They under¬ 
stand the situation which led to the demand for the enactment of 
the statute, and they also appreciate the results upon the growth 
and prosperity of the state which, in all probability, would flow 
from a denial of its validity. These are matters which might prop¬ 
erly be held to have a material bearing upon the question whether 
the individual use proposed might not in fact be a public one. 
It is not alone the fact that the land is arid and that it will bear 
crops if irrigated, or that the water is necessary for the purpose of 
working a mine, that is material; other facts might exist which 
are also material,—such as the particular manner in which the 
irrigation is carried on or proposed, or how the mining is to be 
done in a particular place where water is needed for that purpose. 
The general situation and amount of the arid land or of the mines 
themselves might also be material, and what proportion of the 
water each owner should be entitled to; also the extent of the pop¬ 
ulation living in the surrounding country, and whether each owner 
of land or mines could be, in fact, furnished with the necessary 


PUBLIC PURPOSE 


337 


water in any other way than by the condemnation in his own be¬ 
half, and not by a company, for his use and that of others. 

These, and many other facts not necessary to be set forth in de¬ 
tail, but which can easily be imagined, might reasonably be re¬ 
garded as material upon the question of public use, and whether 
the use by an individual could be so regarded. With all of these 
the local courts must be presumed to be more or less familiar. 
This court has stated that what is a public use may frequently and 
largely depend upon the facts surrounding the subject, and we 
have said that the people of a state, as also its courts, must, in 
the nature of things, be more familiar with such facts, and with the 
necessity and occasion for the irrigation of the lands, than can 
any one be who is a stranger to the soil of the state, and that such 
knowledge and familiarity must have their due weight with the 
state courts. Fallbrook Irrig. District v. Bradley, 164 U. S. 112, 
159, 41 L. Ed. 369, 388, 17 Sup. Ct. 56. It is true that in the Fall- 
brook Case the question was whether the use of the water was a 
public use when a corporation sought to take land by condemna¬ 
tion under a state statute, for the purpose of making reservoirs 
and digging ditches to supply landowners with the water the com¬ 
pany proposed to obtain and save for such purpose. This court 
held that such use was public. The case did not directly involve 
the right of a single individual to condemn land under a statute 
providing for that condemnation. 

We are, however, as we have said, disposed to agree with the 
Utah court with regard to the validity of the state statute which 
provides, under the circumstances stated in the act, for the con¬ 
demnation of the land of one individual for the purpose of allowing 
another individual to obtain water from a stream in which he has 
an interest, to irrigate his land, which otherwise would remain 
absolutely valueless. 

But we do not desire to be understood by this decision as ap¬ 
proving of the broad proposition that private property may be 
taken in all cases where the taking may promote the public interest 
and tend to develop the natural resources of the state. We simply 
say that in this particular case, and upon the facts stated in the 
findings of the court, and having reference to the conditions al¬ 
ready stated, we are of opinion that the use is a public one, al¬ 
though the taking of the right of way is for the purpose simply of 
thereby obtaining the water for an individual, where it is abso¬ 
lutely necessary to enable him to make any use whatever of his 
land, and which will be valuable and fertile only if water can be 
obtained. Other landowners adjoining the defendant in error, if 
any there are, might share in the use of the water by themselves 
taking the same proceedings to obtain it, and we do not think 
it necessary, in order to hold the use to be a public one, that all 
Hall Cases Const.L.—22 


338 


RIGHT OF EMINENT DOMAIN 


should join in the same proceeding, or that a company should be 
formed to obtain the water which the individual landowner might 
then obtain his portion of from the company by paying the agreed 
price, or the price fixed by law. 

The rights of a riparian owner in and to the use of the water 
flowing by his land are not the same in the arid and mountainous 
states of the West that they are in the states of the East. These 
rights have been altered by many of the Western states by their 
constitutions and laws, because of the totally different circum¬ 
stances in which their inhabitants are placed, from those that exist 
in the states of the East, and such alterations have been made for 
the very purpose of thereby contributing to the growth and pros¬ 
perity of those states, arising from mining and the cultivation of 
an otherwise valueless soil, by means of irrigation. This court 
must recognize the difference of climate and soil, which render 
necessary these different laws in the states so situated. 

We are of opinion, having reference to the above peculiarities 
which exist in the state of Utah, that the statute permitting the 
defendant in error, upon the facts appearing in this record, to en¬ 
large the ditch, and obtain water for his own land, was within the 
legislative power of the state. 

Judgment affirmed. 

[HarIvAN and Bre:we:r, JJ., dissented.] 


III. Taking and Injuring Property * 


EATON V. BOSTON, C. & M. R. R. 

(Supreme Court of New Hampshire, 1872. 51 N. H. 504, 12 Am. Rep. 147.) 

[Exceptions to rulings of court in an action on the case brought 
by Eaton against the Boston, Concord & Montreal Railroad. De¬ 
fendant, incorporated by legislative authority, built its railroad 
across plaintiff’s farm and beyond, paying plaintiff for all damage 
due to the construction and maintenance of the road on the part of 
his land taken therefor. Beyond plaintiff’s farm was a narrow 
ridge of land, about 25 feet high and 20 rods wide, that protected 
the farm and adjacent meadows from the overflow of Baker’s river. 
Defendant made a deep cut through this ridge for its road, and the 
river water flowed through this in floods and freshets upon plain¬ 
tiff’s farm, carrying sand and gravel upon it For this damage 
plaintiff sued. The lower court ruled that defendant was liable, 

3 For discussion of principles, see Black, Const Law (3d Ed.) §§ 182, 183. 




TAKING AND INJURING PROPERTY 339 

even though its road was carefully constructed in the usual man¬ 
ner, and these exceptions were taken.] 

Smith, J. It is virtually conceded that, if the cut through the 
ridge had been made by a private land-owner, who had acquired 
no rights from the plaintiff or from the legislature, he would be 
liable for the damages sought to be recovered in this action. It 
seems to be assumed that the freshets were such as, looking at the 
history of the stream in this respect, might be “reasonably expect¬ 
ed occasionally to occur.” The defendants removed the natural 
barrier which theretofore had completely protected the plaintiff’s 
meadow from the effect of these freshets; and, for the damages 
caused to the plaintiff in consequence of such removal, the defend¬ 
ants are confessedly liable, unless their case can be distinguished 
from that of the private land-owner above supposed. Such a dis¬ 
tinction is attempted upon two grounds,—first, that the plaintiff 
has already been compensated for this damage, it being alleged 
that the defendants have, by negotiation, or by compulsory pro¬ 
ceedings, purchased of the plaintiff the right to inflict it; second, 
that the defendants are acting under legislative authority, by virtue 
of which they are entitled to inflict this damage on the plaintiff 
without any liability to compensate him therefor. * ^ * 

The defendants’ first position is, that the plaintiff has already 
received compensation for this damage. This position the court 
have now overruled. The defendants’ next position is, that the 
plaintiff is not legally entitled to receive any compensation, but is 
bound to submit to the infliction of this damage without any right 
of redress. The argument is not put in the precise words we have 
just used, but that is what we understand them to mean. The de¬ 
fendants say that the legislative charter authorized them to build 
the road, if they did it in a prudent and careful manner; that they 
constructed the road at the cut with due care and prudence; and 
that they cannot be made liable as tort-feasors for doing what the 
legislature authorized them to do. This involves two propositions : 
first, that the legislature have attempted to authorize the defend¬ 
ants to inflict this injury upon the plaintiff without making com¬ 
pensation; and second, that the legislature have power to confer 
such authority. There are decisions which tend to show that the 
charter should not be construed as evincing any legislative inten¬ 
tion to authorize this injury, or to shield the defendants from lia¬ 
bility in a common-law action. Tinsman v. Belvidere Delaware 
R. R. Co., 2 Butcher (N. J.) 148, 69 Am. Dec. 565; Sinnickson v. 
Johnson, 2 Harr. (N. J.) 129, 34 Am. Dec. 184; Hooker v. New 
Haven & Northampton Co., 14 Conn. 146, 36 Am. Dec. 477; 
Fletcher v. Auburn & Syracuse R. R. Co., 25 Wend. 462; Brown 
V. Cayuga & Susquehanna R. R. Co., 12 N. Y. (2 Kernan) 486, 
491. See, also, Eastman v. Company, 44 N. H. 143, 160, 82 Am. 
Dec. 201; Hooksett v. Company, 44 N. H. 105, 110; Company 


340 


RIGHT OF EMINENT DOMAIN 


V. Goodale, 46 N. H. 53, 57; Barrows, J., in Lee v. Pembroke Iron 
Co., 57 Me. 481, 488, 2 Am. Rep. 59. But we propose to waive 
inquiry on this point, and to consider only the correctness of the 
second proposition, or, in other words, the question of legislative 
power. * * ♦ 

The vital issue then is, whether the injuries complained of 
amount to a taking of the plaintiff’s property, within the constitu¬ 
tional meaning of those terms. It might seem that to state such 
a question is to answer it; but an examination of the authorities 
reveals a decided conflict of opinion. The constitutional prohibi¬ 
tion (which exists in most, or all, of the states) has received, in 
some quarters, a construction which renders it of comparatively 
little worth, being interpreted much as if it read: “No person shall 
be divested of the formal title to property without compensation, 
but he may without compensation be deprived of all that makes 
the title valuable.” To constitute a “taking of property,” it seems 
to have sometimes been held necessary that there should be “an 
exclusive appropriation,” “a total assumption of possession,” “a 
complete ouster,” an absolute or total conversion of the entire 
property, “a taking of the property altogether.” These views seem 
to us to be founded on a misconception of the meaning of the 
term “property,” as used in the various state Constitutions. 

In a strict legal sense, land is not “property,” but the subject of 
property. The term “property,” although in common parlance fre¬ 
quently applied to a tract of land or a chattel, in its legal signifi¬ 
cation “means only the rights of the owner in relation to it.” “It 
denotes a right * * * over a determinate thing.” “Property 

is the right of any person to possess, use, enjoy, and dispose of a 
thing.” Selden, J., in Wynehamer v. People, 13 N. Y. 378, 433; 
1 Blackstone, Com. 138; 2 Austin on Jurisprudence (3d Ed.) 817, 
818. If property in land consists in certain essential rights, and 
a physical interference with the land substantially subverts one of 
those rights, such interference “takes,” pro tanto, the owner’s 
“property.” The right of indefinite user (or of using indefinitely) 
is an essential quality or attribute of absolute property, without 
which absolute property can have no legal existence. “Use is the 
real side of property.” This right of user necessarily includes the 
right and power of excluding others from using the land. See 2 
Austin on Jurisprudence (3d Ed.) 836; Wells, J., in Walker v. O. 
C. W. R. R., 103 Mass. 10, 14, 4 Am. Rep. 509. From the very 
nature of these rights of user and of exclusion, it is evident that 
they cannot be materially abridged without, ipso facto, taking the 
owner’s “property.” If the right of indefinite user is an essential 
element of absolute property or complete ownership, whatever 
physical interference annuls this right takes “property,” although 
the owner may still have left to him valuable rights (in the article) 
of a more limited and circumscribed nature. He has not the same 


TAKING AND INJURING PROPERTY 


341 


property that he formerly had. Then, he had an unlimited right; 
now, he has only a limited right. His absolute ownership has been 
reduced to a qualified ownership. Restricting A's unlimited right 
of using one hundred acres of land to a limited right of using the 
same land, may work a far greater injury to A than to take from 
him the title in fee-simple to one acre, leaving him the unrestricted 
right of using the remaining ninety-nine acres. Nobody doubts 
that the latter transaction would constitute a “taking of property.” 
Why not the former? 

If, on the other hand, the land itself be regarded as “property,” 
the practical result is the same. The purpose of this constitutional 
prohibition cannot be ignored in its interpretation. The framers 
of the Constitution intended to protect rights which are. worth 
protecting; not mere empty titles, or barren insignia of owner¬ 
ship, which are of no substantial value. If the land, “in its cor¬ 
poreal substance and entity,” is “property,” still, all that makes 
this property of any value is the aggregation of rights or qualities 
which the law annexes as incidents to the ownership of it. The 
constitutional prohibition must have been intended to protect all 
the essential elements of ownership which make “property” valu¬ 
able. Among these elements is, fundamentally, the right of user, 
including, of course, the corresponding right of excluding others 
from the use. See Comstock, J., in Wynehamer v. People, 13 N. 
Y. 378, 396. A physical interference with the land, which sub¬ 
stantially abridges this right, takes the owner’s “property” to just 
so great an extent as he is thereby deprived of this right. “To de¬ 
prive one of the use of his land is depriving him of his land;” for, 
as Lord Coke said: “What is the land but the profits thereof?” 
Sutherland, J., in People v. Kerr, 37 Barb. 357, 399; Co. Titt. 4b. 
The private injury is thereby as completely effected as if the land 
itself were “physically taken away.” 

The principle must be the same whether the owner is wholly de¬ 
prived of the use of his land, or only partially deprived of it; al¬ 
though the amount or value of the property taken in the two in¬ 
stances may widely differ. If the railroad corporation take a strip 
four rods wide out of a farm to build their track upon, they can¬ 
not escape paying for the strip by the plea that they have not 
taken the whole farm. So a partial, but substantial, restriction of 
the right of user may not annihilate all the owner’s rights of prop¬ 
erty in the land, but it is none the less true that a part of his prop¬ 
erty is taken. Taking a part “is as much forbidden by the Consti¬ 
tution as taking the whole. The difference is only one of degree; 
the quantum of interest may vary, but the principle is the same.’^ 
See 6 Am. Law Review, 197-198; Lawrence, J., in Nevins v. City 
of Peoria, 41 Ill. 502, 511, 89 Am. Dec. 392. The explicit language 
used in one clause of our Constitution indicates the spirit of the 
whole instrument. “No part of a man’s property shall be taken. 


342 


RIGHT OF EMINENT DOMAIN 


He ♦ *Constitution of N. H., Bill of Rights, article 12. The 
opposite construction would practically nullify the Constitution. 
If the public can take part of a man’s property without compensa¬ 
tion, they can, by successive takings of the different parts, soon 
acquire the whole. Or, if it is held that the complete divestiture 
of the last scintilla of interest is a taking of the whole for which 
compensation must be made, it will be easy to leave the owner an 
interest in the land of infinitesimal value. 

The injury complained of in this case is not a mere personal 
inconvenience or annoyance to the occupant. Two marked char¬ 
acteristics distinguish this injury from that described in many 
other cases. First, it is a physical injury to the land itself, a phys¬ 
ical interference with the rights of property, an actual disturbance 
of the plaintiff’s possession. Second, it would clearly be action¬ 
able if done by a private person without legislative authority. The 
damage is “consequential,’’ in the sense of not following immedi¬ 
ately in point of time upon the act of cutting through the ridge, 
but it is what Sir William Erie calls “consequential damage to 
the actionable degree.” See Brand v. H. & C. R. Co., Law Re¬ 
ports, 2 Queen’s Bench, 223, 249. These occasional inundations 
may produce the same effect in preventing the plaintiff from mak¬ 
ing a beneficial use of the land as would be caused by a manual 
asportation of the constituent materials of the soil. Covering the 
land with water, or with stones, is a serious interruption of the 
plaintiff’s right to use it in the ordinary manner. If it be said that 
the plaintiff still has his land, it may be answered, that the face of 
the land does not remain unchanged, and that the injury may 
result in taking away part of the soil (“and, if this may be done, 
the plaintiff’s dwelling-house may soon follow”) ; and that, even 
if the soil remains, the plaintiff may, by these occasional submerg¬ 
ings, be deprived of the profits which would otherwise grow out 
of his tenure. “His dominion over it, his power of choice as to 
the uses to which he will devote it, are materially limited.” Brink- 
erhoff, J., in Reeves v. Treasurer of Wood County, 8 Ohio St. 333, 
346. 

The nature of the injury done to the plaintiff may also be seen 
by adverting to the nature of the right claimed by the defendants. 
The primary purpose of the defendants in cutting through the 
ridge was to construct their road at a lower level than would oth¬ 
erwise have been practicable. But, although the cut was not made 
“for the purpose of conducting the water in a given course” on 
to the plaintiff’s land, it has that result; and the defendants persist 
in allowing this excavation to remain, notwithstanding the injury 
thereby visibly caused to the plaintiff. Rather than raise the 
grade of their track, they insist upon keeping open a canal to con¬ 
duct the flood-waters of the river directly on to the plaintiff’s land. 
If it be said that the water came naturally from the southerly end 


TAKING AND INJURING PROPERTY 


343 


of the cut on to the plaintiff’s land, the answer is, that the water 
did not come naturally to the southerly end of the cut. It came 
there by reason of the defendants’ having made that cut. In con¬ 
sequence of the cut, water collected at the southerly boundary of 
the ridge, north of the plaintiff’s farm, which would not have been 
there if the ridge had remained in its normal and unbroken con¬ 
dition. They have “so dealt with the soil” of the ridge, that, if a 
flood came, instead of being held in check by the ridge, and ulti¬ 
mately getting away by the proper river channel without harm to 
the plaintiff, it flowed through where the ridge once was on to 
the plaintiff’s land. “Could the defendants say they were not 
liable because they did not cause the rain to fall,” which resulted 
in the freshet; or because the water “came there by the attraction 
of gravitation?” See Bramwell, Baron, in Smith v. Fletcher, Law 
Reports, 7 Exchq. 305, 310. If the ridge still remained in its nat¬ 
ural condition, could the defendants pump up the flood-water into 
a spout on the top of the ridge, and thence, by means of the spout, 
pour it directly on to the plaintiff’s land? If not, how can they 
maintain a canal through which the water by the force of gravita¬ 
tion will inevitably find its way to the plaintiff’s land? See Ames, 
J., in Shipley v. Fifty Associates, 106 Mass. 194, 199, 200, 8 Am. 
Rep. 318; Chapman, C. J., in Salisbury v. Herchenroder, 106 Mass. 
458, 460, 8 Am. Rep. 354. To turn a stream of water on to the 
plaintiff’s premises is as marked an infringement of his proprietary 
rights as it would be for the defendants to go upon the premises 
in person and “dig a ditch, or deposit upon them a mound of 
earth.” See Lawrence, J., in Nevins v. City of Peoria, 41 Ill. 502, 
510, 89 Am. Dec. 392; Dixon, C. J., in Pettigrew v. Village of 
Evansville, 25 Wis. 223, 231, 236, 3 Am. Rep. 50. The defendants 
may, perhaps, regret that they cannot maintain their track at its 
present level without thereby occasionally pouring flood-water on 
to the land of the plaintiff. Indeed, the passage of this water 
through the cut may cause some injury to the defendants’ road 
bed. But the advantages of maintaining the track at the present 
grade outweigh, in the defendants’ estimation, the risk of injury 
by water to themselves and to the plaintiff. 

In asserting the right to maintain the present condition of 
things as to the cut, the defendants necessarily assert the right 
to produce all the results which naturally follow from the ex¬ 
istence of the cut. In effect, they thus assert a right to discharge 
water on to the plaintiff’s land. Such a right is an easement. 
A right of “occasional flooding” is just as much an easement 
as a right of “permanent submerging;” it belongs to the class 
of easements which “are by their nature intermittent—that is, 
usable or used only at times.” See Goddard’s Law of Ease¬ 
ments, 125. If the defendants had erected a dam on their own 


344 


RIGHT OF EMINENT DOMAIN 


land across the river below the plaintiff’s meadow, and by means 
of flash-boards thereon had occasionally caused the water to flow 
back and overflow the plaintiff’s meadow so long and under 
such circumstances as to give them a prescriptive right to con¬ 
tinue such flowage, the right thus acquired would unquestion¬ 
ably be an “easement.” The right acquired in that case does not 
differ in its nature from the right now claimed. In the former 
instance, the defendants flow the plaintiff’s land by erecting an un¬ 
natural barrier below his premises. In the present instance, they 
flow his land by removing a natural barrier on the land above his 
premises. In both instances, they flow his land by making “a non¬ 
natural use” of their own land. In both instances, they do an act 
upon their own land, the effect of which is to restrict or burden 
the plaintiff’s ownership of his land (see Leconfield v. Lonsdale, 
Law Reports, 5 Com. Pleas, 657, 696) ; and the weight of that bur¬ 
den is not necessarily dependent upon the source of the water, 
whether from below or above. See Bell, J., in Tillotson v. Smith, 
32 N. H. 90, 95, 96, 64 Am. Dec. 355. In both instances they turn 
water upon the plaintiff’s land “which does not flow naturally in 
that place.” If the right acquired in the former instance is an 
easement, equally so must be the right claimed in the latter. If, 
then, the claim set up by the defendants in this case is well found¬ 
ed, an easement is already vested in them. An easement is prop¬ 
erty, and is within the protection of the constitutional prohibition 
now under consideration. If the defendants have acquired this 
easement, it cannot be taken from them, even for the public use, 
without compensation. But the right acquired by the defendants 
is subtracted from the plaintiff’s ownership of the land. What¬ 
ever interest the defendants have acquired in this respect the plain¬ 
tiff has lost. If what they have gained is property, then wRat he 
has lost is property. If the easement, when once acquired, cannot 
be taken from the defendants without compensation, can the de¬ 
fendants take it from the plaintiff in the first instance without 
compensation? See Brinkerhoff, J., ubi supra; Selden, J., in Wil¬ 
liams V. N. Y. Central R. R., 16 N. Y. 97, 109, 69 Am. Dec. 651. 
An easement is all that the railroad corporation acquire when they 
locate and construct their track directly over a man’s land. The 
fee remains in the original owner. Blake v. Rich, 34 N. H. 282. 
Yet nobody doubts that such location and construction is a “tak¬ 
ing of property,” for which compensation must be made. See 
Redfield, J., in Hatch v. Vt. Central R. R., 25 Vt. 49, 66. What 
difference does it make in principle whether the plaintiff’s land 
is encumbered with stones, or with iron rails? whether the defend¬ 
ants run a locomotive over it, or flood it with the waters of Ba¬ 
ker’s river? See Wilcox, J., in March v. P. & C. R. R., 19 N. 
H. 372, 380; Walworth, Chan., in Canal Com’rs & Canal Apprais¬ 
ers V. People, 5 Wend. 423, 452. * ♦ 


TAKING AND INJURING PROPERTY 


345 


We think that here has been a taking of the plaintiff’s property; 
that, as the statutes under which the defendants acted make no 
provision for the plaintiff’s compensation, they afford no justifica¬ 
tion ; that the defendants are liable in this action as wrong-doers; 
and that the ruling of the court was correct. These conclusions, 
which are supported by authorities to which reference will soon 
be made, seem to us so clear, that, if there were no adverse au¬ 
thorities, it would be unnecessary to prolong the discussion of this 
case. But, as there are respectable authorities which are in direct 
conflict with these conclusions, it has been thought desirable to 
examine some arguments which have, at various times, been ad¬ 
vanced in support of the opposite view. 

In some instances, as soon as it has been made to appear that 
there is a legislative enactment purporting to authorize the doing 
of the act complained of, the complaint has been at once sum¬ 
marily disposed of by the curt statement “that an act authorized 
by law cannot be a tort.” This is begging the question. It as¬ 
sumes the constitutionality of the statute. If the enactment is op¬ 
posed to the Constitution, it is “in fact no law at all.” * * * 

The error in question * * * arises from following English au¬ 
thorities, without adverting to the immense difference between 
the practically omnipotent powers of the British Parliament and 
the comparatively limited powers of our state legislatures, acting 
under the restrictions of written constitutions. Parliament is the 
supreme power of the realm. It is at once a legislature and a 
constitutional convention. * * * 

It is said that a land-owner is not entitled to compensation where 
the damage is merely “consequential.” The use of this term “con¬ 
sequential damage” “prolongs the dispute,” and “introduces an 
equivocation which is fatal to any hope of a clear settlement.” It 
means both damage which is so remote as not to be actionable, 
and damage which is actionable. Sometimes it is used to denote 
damage which, though actionable, does not follow immediately, in 
point of time, upon the doing of the act complained of; what Erie, 
C. J., aptly terms “consequential damage to the actionable de¬ 
gree.” Brand v. H. & C. R. Co., Law Reports, 2 Queen’s Bench, 
223, 249. It is thus used to signify damage which is recoverable 
at common law in an action of case, as contradistinguished from 
an action of trespass. On the other hand, it is used to denote a 
damage which is so remote a consequence of an act that the law 
affords no remedy to recover it. * * * When, then, it is said 

that a land-owner is not entitled to compensation for “consequen¬ 
tial damage,” it is impossible either to affirm or deny the correct¬ 
ness of the statement until we know in what sense the phrase 
“consequential damage” is used. If it is to be taken to mean dam¬ 
age which would not have been actionable at common law if done 


346 


RIGHT OP EMINENT DOMAIN 


by a private individual, the proposition is correct. The constitu¬ 
tional reslriction was designed “not to give new rights, but to pro¬ 
tect those already existing.” Pierce on Am. R. R. Law, 173; and 
see Rickett v. Directors, &c., of Metropolitan Railway Co., Law 
Reports, 2 House of Lords, 175, 188, 189, 196. But this does not 
concern the present case, where it is virtually conceded that the 
injury would have been actionable if done by a private individual 
not acting under statutory authority. If, upon the other hand, the 
phrase is used to describe damage, which, though not following 
immediately in point of time upon the doing of the act complained 
of, is nevertheless actionable, there seems no good reason for es¬ 
tablishing an arbitrary rule that such damage can in no event 
amount to a “taking of property.” 

The severity of the injury ultimately resulting from an act is 
not always in inverse proportion to the lapse of time between the 
doing of the act and the production of the result. Heavy damages 
are recovered in case as well as in trespass. The question whether 
the injury constitutes a “taking of property” must depend on its 
effect upon proprietary rights, not on the length of time necessary 
to produce that effect. If a man’s entire farm is permanently sub¬ 
merged, is the damage to him any less because the submerging 
was only the “consequential” result of another’s act? It has been 
said “that a nuisance by flooding a man’s land was originally con¬ 
sidered so far a species of ouster, that he might have had a remedy 
for it by assize of novel disseisinbut if it be conceded that at 
present the only common law remedy is by an action on the case, 
that does not change the aspect of the constitutional question. 
The form of action in which the remedy must be sought cannot be 
decisive of the question whether the injury falls within the consti¬ 
tutional prohibition. “We are not to suppose that the framers of 
the Constitution meant to entangle their meaning in the mazes” 
of the refined technical distinctions by which the common-law 
system of forms of action is “perplexed and encumbered.” Such 
a test would be inapplicable in a large proportion of the states, 
where the distinction between trespass and case has been annihi¬ 
lated by the abolition of the old forms of action. * * * 

[After a lengthy review of the authorities:] By the foregoing 
review of authorities, it appears that the number of actual deci¬ 
sions in irreconcilable conflict with the present opinion is much 
smaller than has sometimes been supposed, and that, in a large 
proportion of the cases cited, the application of the principles here 
maintained would not have necessitated the rendition of a different 
judgment from that which the courts actually rendered in those 
cases. * * * 

Case discharged. 


TAKING AND INJURING PROPERTY 


347 


SAWYER V. DAVIS. 

(Supreme Judicial Court of Massachusetts, 1884. 136 Mass. 239, 49 Am. 

Rep. 27.) 

[Case reserved. The plaintiff manufacturers had been enjoined 
by the present defendants from ringing their mill bell before 6:30 
a. m. as a nuisance. See Davis v. Sawyer, 133 Mass. 289, 43 Am. 
Rep. 519. Acting under subsequent legislative authority the se¬ 
lectmen of Plymouth granted to plaintiffs a license to ring their 
bell at 5 a. m. as they had done before the injunction. Plaintiffs 
then filed a bill of review to have the former injunction dissolved 
or modified in accordance with said license. On demurrer to the 
bill, Colburn, J., reserved the case for the full court.] 

C. AulKn, J. Nothing is better established than the power of the 
Legislature to make what are called police regulations, declaring 
in what manner property shall be used and enjoyed, and business 
carried on, with a view to the good order and benefit of the com¬ 
munity, even although they may to some extent interfere with the 
full enjoyment of private property, and although no compensation 
is given to a person so inconvenienced. Bancroft v. Cambridge, 
126 Mass. 438, 441. In most instances, the illustrations of the 
proper exercise of this power are found in rules and regulations 
restraining the use of property by the owner, in such a manner 
as would cause disturbance and injury to others. But the priv¬ 
ilege of continuing in the passive enjoyment of one’s own property, 
in the same manner as formerly, is subject to a like limitation; 
and with the increase of population in a neighborhood, and the 
advance and development of business, the quiet and seclusion and 
customary enjoyment of homes are necessarily interfered with, un¬ 
til it becomes a question how the right which each person has of 
prosecuting his lawful business in a reasonable and proper man¬ 
ner shall be made consistent with the other right which each per¬ 
son has to be free from unreasonable disturbance in the enjoyment 
of his property. Merrifield v. Worcester, 110 Mass. 216, 219, 14 
Am. Rep. 592. In this conflict of rights, police regulations by the 
Legislature find a proper office in determining how far and under 
what circumstances the individual must yield with a view to the 
general good. For example, if, in a neighborhood thickly occupied 
by dwelling-houses, any one, for his own entertainment or the 
gratification of a whim, were to cause bells to be rung and steam- 
whistles to be blown to the extent that is usual with the bells and 
steam-whistles of locomotive engines near railroad stations in 
large cities, there can be no doubt that it would be an infringement 
of the rights of the residents, for which they could find ample 
remedy and vindication in the courts. But if the Legislature, with 
a view to the safety of life, provides that bells shall be rung and 


348 


RIGHT OF EMINENT DOMAIN 


whistles sounded, under those circumstances, persons living near 
by must necessarily submit to some annoyance from this source, 
which otherwise they would have a right to be relieved from. 

It is ordinarily a proper subject for legislative discretion to de¬ 
termine by general rules the extent to which those who are en¬ 
gaged in customary and lawful and necessary occupations shall be 
required or allowed to give signals or warnings by bells or 
whistles, or otherwise, with a view either to the public safety, as 
in the case of railroads, or to the necessary or convenient operation 
and management of their own works; and ordinarily such determi¬ 
nation is binding upon the courts, as well as upon citizens gen¬ 
erally. And when the Legislature directs or allows that to be 
done which would otherwise be a nuisance, it will be valid, upon 
the ground that the Legislature is ordinarily the proper judge of 
what the public good requires, unless carried to such an extent 
that it can fairly be said to be an unwholesome and unreasonable 
law. Bancroft v. Cambridge, 126 Mass. 441. It is accordingly 
held in many cases, and is now a well-established rule of law, at 
least in this commonwealth, that the incidental injury which re¬ 
sults to the owner of property situated near a railroad, caused by 
the necessary noise, vibration, dust, and smoke from the passing 
trains, which would clearly amount to an actionable nuisance if 
the operation of the railroad were not authorized by the Legisla¬ 
ture, must, if the running of the trains is so authorized, be borne 
by the individual, without compensation or remedy in any form. 
The legislative sanction makes the business lawful, and defines 
what must be accepted as a reasonable use of property and ex¬ 
ercise of rights on the part of the railroad company, subject always 
to the qualification that the business must be carried on without 
negligence or unnecessary disturbance of the rights of others. 
And the same rule extends to other causes of annoyance which are 
regulated and sanctioned by law. [Citing cases.] * * * 

The recent case of Baltimore & Potomac Railroad v. Fifth Bap¬ 
tist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, is strongly 
relied on by the defendants as an authority in their favor. There 
are, however, two material and decisive grounds of distinction be¬ 
tween that case and this. There the railroad company had only a 
general legislative authority to construct works necessary and ex¬ 
pedient for the proper completion and maintenance of its railroad,, 
under which authority it assumed to build an engine-house and 
machine-shop by an existing church, and it was held that it was 
never intended to grant a license to select that particular place 
for such works, to the nuisance of the church. Moreover, in that 
case, the disturbance was so great as not only to render the church 
uncomfortable, but almost unendurable as a place of worship, and 
it virtually deprived the owners of the use and enjoyment of their 


TAKING AND INJURING PROPERTY 


349 


property. We do not understand that it was intended to lay down, 
as a general rule applicable to all cases of comparatively slight 
though real annoyance, naturally and necessarily resulting in a 
greater or less degree to all owners of property in the neighbor¬ 
hood from a use of property or a method of carrying on a lawful 
business which clearly falls within the terms and spirit of a legis¬ 
lative sanction, that such sanction will not affect the claim of such 
an owner to relief; but rather that the court expressly waived the 
expression of an opinion upon the point. 

In this commonwealth, as well as in several of the United States 
and in England, the cases already cited show that the question is 
settled by authority, and we remain satisfied with the reasons upon 
which the doctrine was here established. Courts are compelled to 
recognize the distinction between such serious disturbances as 
existed in the case referred to, and comparatively slight ones, 
which differ in degree only, and not in kind, from those suffered 
by others in the same vicinity. Slight infractions of the natural 
rights of the individual may be sanctioned by the Legislature under 
the proper exercise of the police power, with a view to the gen¬ 
eral good. Grave ones will fall within the constitutional limitation 
that the Legislature is only authorized to pass reasonable laws. 
The line of distinction cannot be so laid down as to furnish a rule 
for the settlement of all cases in advance. The difficulty of mark¬ 
ing the boundaries of this legislative power, or of prescribing lim¬ 
its to its exercise, was declared in Commonwealth v. Alger, 7 Cush. 
53, 85, and is universally recognized. Courts, however, must de¬ 
termine the rights of parties in particular cases as they arise; 
always recognizing that the ownership of property does not of it¬ 
self imply the right to use or enjoy it in every possible manner, 
without regard to corresponding rights of others as to the use and 
enjoyment of their property; and also that the rules of the com¬ 
mon law, which have from time to time been established, declar¬ 
ing or limiting such rights of use and enjoyment, may themselves 
be changed as occasion may require. Munn v. Illinois, 94 U. S. 
113, 134, 24 L. Ed. 77. 

In the case before us, looking at it for the present without re¬ 
gard to the decree of this court in the former case between these 
parties, we find nothing in the facts set forth which show that the 
statute relied on as authorizing the plaintiffs to ring their bell 
(St. 1883, c. 84) should be declared unconstitutional. It is vir¬ 
tually a license to manufacturers, and others employing workmen, 
to carry on their business in a method deemed by the Legislature 
to be convenient, if not necessary, for the purpose of giving notice, 
by ringing bells, and using whistles and gongs, in such manner 
and at such times as may be designated in writing by municipal 
officers. * * * 


350 


RIGHT OF EMINENT DOMAIN 


[The court then decided that defendants had no vested right to 
a continuance of the injunction after the law had been changed by 
the Legislature.] 

Demurrer overruled. 


SAUER V. CITY OF NEW YORK 

(Supreme Court of United States, 1907. 206 U. S. 536, 27 Sup. Ct. 686, 51 L. 

Ed. 1176.) 

[Error to the New York Supreme Court, upon a judgment for 
defendant, affirmed by the Appellate Division and the Court of 
Appeals, and then remitted to the Supreme Court of the state for 
final judgment. The plaintiff owned land and buildings upon 
155th street in New York City, one end of which street was closed 
by a steep bluff 70 feet high. To connect this street with the 
streets at the top of the bluff, the city constructed a viaduct above 
the surface of 155th street, running with a gradual ascent to the 
top of the bluff, and devoted solely to ordinary street traffic by 
teams, vehicles, and pedestrians. Opposite plaintiff’s land the 
viaduct was 50 feet high, 63 feet wide, and came within 10 feet of 
his building. The viaduct and its supporting columns materially 
impaired the light, air, and access plaintiff’s land enjoyed from the 
street. Other facts appear in the opinion.] 

Mr. Justice Moody. * * plaintiff, in his complaint, 

alleged that this structure was unlawful, because the law under 
which it was constructed did not provide for compensation for the 
injury to his private property in the easements of access, light, 
and air, appurtenant to his estate. The court of appeals denied 
the plaintiff the relief which he sought, upon the ground that, un¬ 
der the law of New York, he had no easements of access, light, or 
air, as against any improvement of the street for the purpose of 
adapting it to public travel. In other words, the court in effect 
decided that the property alleged to have been injured did not 
exist. The reasons upon which the decision of that court proceed¬ 
ed will appear by quotations from the opinion of the court, deliv¬ 
ered by Judge Haight. Judge Haight said: 

“The fee of the street having been acquired according to the 
provisions of the statute, we must assume that full compensation 
was made to the owners of the lands through which the streets 
and avenues were laid out, and that thereafter the owners of lands 
abutting thereon hold their titles subject to all of the legitimate 
and proper uses to which the streets and public highways may be 
devoted. As such owners they are subject to the right of the pub¬ 
lic to grade and improve the streets, and they are presumed to 
have been compensated for any future improvement or change in 
the surface or grade rendered necessary for the convenience of 



TAKING AND INJURING PROPERTY 


351 


public travel, especially in cities where the growth of population 
increases the use of the highways. The rule may be different as 
to peculiar and extraordinary changes made for some ulterior pur¬ 
poses other than the improvement of the street, as, for instance, 
where the natural surface has been changed by artificial means, 
such as the construction of a railroad embankment, or a bridge 
over a railroad, making elevated approaches necessary. But as 
to changes from the natural contour of the surface, rendered neces¬ 
sary in order to adapt the street to the free and easy passage of 
the public, they may be lawfully made without additional com¬ 
pensation to abutting owners, and for that purpose bridges may be 
constructed over streams and viaducts over ravines, with approach¬ 
es thereto from intersecting streets.” 5}« * * 

The plaintiff now contends that the judgment afterwards ren¬ 
dered by the supreme court of New York, in conformity with the 
opinion of the court of appeals, denied rights secured to him by 
the federal Constitution. This contention presents the only ques¬ 
tion for our determination, and the correctness of the principles of 
local land law applied by the state courts is not open to inquiry here, 
unless it has some bearing upon that question. But it may not 
be inappropriate to say that the decision of the court of appeals 
seems to be in full accord with the decisions of all other courts in 
which the same question has arisen. The state courts have uni¬ 
formly held that the erection over a street of an elevated viaduct, 
intended for general public travel, and not devoted to the exclusive 
use of a private transportation corporation, is a legitimate street 
improvement, equivalent to a change of grade; and that, as in the 
case of a change of grade, an owner of land abutting on the street 
is not entitled to damages for the impairment of access to his land 
and the lessening of the circulation of light and air over it. Selden 

V. Jacksonville, 28 Fla. 558, 14 L. R. A. 370, 29 Am. St. Rep. 278, 
10 South. 457; Willis v. Winona City, 59 Minn. 27, 26 L. R. A. 
142, 60 N. W. 814; Colclough v. Milwaukee, 92 Wis. 182, 65 N. 

W. 1039; Walish v. Milwaukee, 95 Wis. 16, 69 N. W. 818; Home 
Bldg. & Conveyance Co. v. Roanoke, 91 Va. 52, 27 L. R. A. 551, 
20 S. E. 895 (cited with apparent approval by this court in Meyer 
V. Richmond, 172 U. S. 82-95, 43 L. Ed. 374-379, 19 Sup. Ct. 106) ; 
Willets Mfg. Co. V. Mercer County, 62 N. J. Law, 95, 40 Atl. 782; 
Brand v. Multnomah County, 38 Or. 79, 50 L. R. A. 389, 84 Am. 
St. Rep. 772, 60 Pac. 290, 62 Pac. 209; Mead v. Portland, 45 Or. 
1, 76 Pac. 347 (affirmed by this court in 200 U. S. 148, 50 L. Ed. 
413, 26 Sup. Ct. 171) ; Sears v. Crocker, 184 Mass. 588, 100 Am. 
St. Rep. 577, 69 N. E. 327; (semble) De Lucca v. North Little 
Rock (C. C.) 142 Fed. 597. 

The case of Willis v. Winona is singularly like the case at bar 
in its essential facts. There, as here, a viaduct was constructed. 


352 


RIGHT OF EMINENT DOMAIN 


connecting by a gradual ascent the level of a public street with 
the level of a public bridge across the Mississippi. An owner of 
land abutting on the street over which the viaduct was elevated 
was denied compensation for his injuries, Mr. Justice Mitchell 
saying: 

“The bridge is just as much a public highway as is Main street, 
with which it connects; and, whether we consider the approach as 
a part of the former or of the latter, it is merely a part of the high¬ 
way. The city having, as it was authorized to do, established a 
new highway across the Mississippi river, it was necessary to con¬ 
nect it, for purposes of travel, with Main and the other streets 
of the city. This it has done, in the only way it could have been 
done, by what, in effect, amounts merely to raising the grade of 
the center of Main street in front of plaintiff’s lot. It can make 
no difference in principle whether this was done by filling up the 
street solidly, or, as in this case, by supporting the way on stone 
or iron columns. Neither is it important if the city raise the grade 
of only a part of the street, leaving the remainder at a lower grade. 
* * 

“The doctrine of the courts everywhere, both in England and 
in this country (unless Ohio and Kentucky are exceptions), is that 
so long as there is no application of the street to purposes other 
than those of a highway, any establishment or change of grade 
made lawfully, and not negligently performed, does not impose an 
additional servitude upon the street, and hence is not within the 
constitutional inhibition against taking private property without 
compensation, and is not the basis for an action for damages, un¬ 
less there be an express statute to that effect. That this is the 
rule, and that the facts of this case fall within it, is too well estab¬ 
lished by the decisions of this court to require the citation of au¬ 
thorities from other jurisdictions. ^ ^ ^ 

“The New York elevated railway cases cited by plaintiff are not 
authority in his favor, for they recognize and affirm the very doc¬ 
trine that we have laid down (Story v. New York Kiev. R. Co., 
90 N. Y. 122, 43 Am. Rep. 146), but hold that the construction and 
maintenance on the street of an elevated railroad operated by 
steam, and which was not open to the public for purposes of travel 
and traffic, was a perversion of the street from street uses, and 
imposed upon it an additional servitude, which entitled abutting 
owners to damages.” ^ * 

Has the plaintiff been deprived of his property without due 
process of law? The viaduct did not invade the plaintiff’s land. 
It was entirely outside that land. But it is said that appurtenant 
to the land there were easements of access, light, and air, and that 
the construction and operation of the viaduct impaired these ease¬ 
ments to such an extent as to constitute a taking of them. The 


TAKING AND INJURING PROPERTY 


353 


only question which need here be decided is whether the plaintiff 
had, as appurtenant to his land, easements of the kind described; 
in other words, whether the property which the plaintiff alleged 
was taken existed at all. The court below has decided that the 
plaintiff had no such easements; in other words, that there was 
no property taken. It is clear that, under the law of New York, 
an owner of land abutting on the street has easements of access, 
light, and air as against the erection of an elevated roadway by 
or for a private corporation for its own exclusive purposes, but 
that he has no such easements as against the public use of the 
streets, or any structures which may be erected upon the street 
to subserve and promote that public use. The same law which 
declares the easements defines, qualifies, and limits them. Surely 
such questions must be for the final determination of the state 
court. It has authority to declare that the abutting landowner has 
no easement of any kind over the abutting street; it may deter¬ 
mine that he has a limited easement; or it may determine that he 
has an absolute and unqualified easement. The right of an owner 
of land abutting on public highways has been a fruitful source of 
litigation in the courts of all the states, and the decisions have been 
conflicting, and often in the same state irreconcilable in principle. 
The courts have modified or overruled .their own decisions, and 
each state has in the end fixed and limited, by legislation or ju¬ 
dicial decision, the rights of abutting owners in accordance with 
its own view of the law and public policy. As has already been 
pointed out, this court has neither the right nor the duty to rec¬ 
oncile these conflicting decisions nor to reduce the law of the 
various states to a uniform rule which it shall announce and im¬ 
pose. Upon the ground, then, that under the law of New York, as 
determined by its highest court, the plaintiff never owned the 
easements which he claimed, and that therefore there was no prop¬ 
erty taken, we hold that no violation of the fourteenth amendment 
is shown. 

The remaining question in the case is whether the judgment un¬ 
der review impaired the obligation of a contract. It appears from 
the cases to be cited that the courts of New York have expressed 
the rights of owners of land abutting upon public streets to and 
over those streets in terms of contract rather than in terms of 
title. In the city of New York the city owns the fee of the public 
streets (whether laid out under the civil law of the Dutch regime, 
or as the result of conveyances between the city and the owners of 
land, or by condemnation proceedings under the statutory law of 
the state) upon a trust that they shall forever be kept open as pub¬ 
lic streets, which is regarded as a covenant running with the abut¬ 
ting land. Accepting, for the purposes of this discussion, the 
Hall Cases Const.L.—23 


354 


RIGHT OF EMINENT DOMAIN 


view that the plaintiff’s rights have their origin in a contract, then 
it must be that the terms of the trust and the extent of the re¬ 
sulting covenant are for the courts of New York finally to decide 
and limit, providing that in doing so they deny no federal right 
of the owner. The plaintiff asserts that the case of Story v. New 
York Kiev. R. Co., 90 N. Y. 122, 43 Am. Rep. 146, decided in 1882, 
four years before he acquired title to the property, interpreted the 
contract between the city of New York and the owners of land 
abutting upon its streets as assuring the owner easements of 
access, light, and air, which could not lawfully be impaired by the 
erection on the street of an elevated structure designed for pub¬ 
lic travel; that he is entitled to the benefit of his contract as thus 
interpreted, and that the judgment of the court denying him its 
benefits impaired its obligation. If the facts upon which this claim 
is based are accurately stated, then the case comes within the au¬ 
thority of Muhlker v. New York & H. R. Co., 197 U. S. 544, 49 
L. Ed. 872, 25 Sup. Ct. 522, which holds that, when the court of 
appeals has once interpreted the contract existing between the 
landowner and the city, that interpretation becomes a part of the 
contract, upon which one acquiring land may rely, and that any 
subsequent change of it to his injury impairs the obligation of the 
contract. * * * 

The plaintiff in the Story Case held the title to land injuriously 
affected by the construction of an elevated railroad, as a successor 
to a grantee from the city. In the deed of the city the land was 
bounded on the street and contained a covenant that it should 
“forever thereafter continue and be for the free and common pas¬ 
sage of, and as public streets and ways for, the inhabitants of the 
said city, and all others passing and returning through or by the 
same, in like manner as the other streets of the same city now 
are, or lawfully ought to be.” It was held that by virtue of this 
covenant, which ran with the land, the plaintiff was entitled to 
easements in the street of access, and of free and uninterrupted 
passage of light and air; that the easements were property within 
the meaning of the Constitution of the state, and could not law¬ 
fully be taken from their owner without compensation, and that 
the erection of the elevated structure was a taking. The decision 
rested upon the view that the erection of an elevated structure for 
railroad purposes was not a legitimate street use. “There is no 
change,” said Judge Danforth (page 156), “in the street surface 
intended; but the elevation of a structure useless for general street 
purposes, and as foreign thereto as the house in Vesey street 
(Corning v. Eowerre, 6 Johns. Ch. 439) or the freight depot (Bar¬ 
ney V. Keokuk, 94 U. S. 324, 24 L. Ed. 224).” 

“The question here presented,” said Judge Tracy (p. 174, Am. 
Rep. p. 156), “is not whether the legislature has the power to regu- 


TAKING AND INJURING PROPERTY 


355 


•late and control the public uses of the public streets of the city, 
but whether it has the power to grant to a railroad corporation au¬ 
thority to take possession of such streets and appropriate them 
to uses inconsistent with and destructive of their continued use as 
open public streets of the city.’’ [Here follow quotations to the 
same effect from Lahr v. Kiev. R. Co., 104 N. Y. 268, 10 N. E. 
528, and Kane v. Kiev. R. Co., 125 N. Y. 164, 26 N. E. 278, 11 E. 
R. A. 640, holding that even apart from express covenant. New 
York City owned the fee of all streets upon a statutory trust that 
they should be kept open as public streets.] * * hj 

It would be difficult for words to show more clearly than those 
quoted from the opinions that such a case as that now before us 
was not within the scope of the decisions or of the reasons upon 
which they were founded. The difference between a structure 
erected for the exclusive use of a railroad and one erected for the 
general use of the public was sharply defined. It was only the for¬ 
mer which the court had in view. That the structure was elevated, 
and for that reason affected access, light, and air, was an im¬ 
portant element in the decisions, but it was not the only essential 
element. The structures in these cases were held to violate the 
landowners’ rights, not only because they were elevated and there¬ 
by obstructed access, light, and air, but also because they were de¬ 
signed for the exclusive and permanent use of private corporations. 
The limitation of the scope of the decision to such structures, 
erected for such purposes, appears not only in the decisions them¬ 
selves, but quite clearly from subsequent decisions of the court of 
appeals. In the case of Fobes v. Rome, W. & O. R. Co., 121 N. 
Y. 505, 8 L. R. A. 453, 24 N. E. 919, Judge Peckham, now Mr. 
Justice Peckham, made the following statement of the effect of the 
Story Case. Certain portions of it are italicized here for the pur¬ 
pose of emphasizing the point now under consideration: 

‘Tt was not intended in the Story Case to overrule or change the 
law in regard to steam surface railroads. The case embodied the 
application of what was regarded as well-established principles of 
law to a new combination of facts, such facts amounting, as was 
determined, to an absolute and permanent obstruction in a portion 
of the public street, and in a total and exclusive use of such portion 
by the defendant, and such permanent obstruction and total and ex¬ 
clusive use, it was further held, amounted to a taking of some por¬ 
tion of the plaintiff’s easement in the street for the purpose of fur¬ 
nishing light, air, and access to his adjoining lot. This absolute and 
permanent obstruction of the street, and this total and exclusive use 
of a portion thereof by the defendant were accomplished by the erec¬ 
tion of a structure for the elevated railroad of defendant; which 
structure is fully described in the case as reported. 

“The structure, by the mere fact of its existence in the street, per- 


356 


RIGHT OF EMINENT DOMAIN 


manently and at every moment of the day took away from the plain¬ 
tiff some portion of the light and air which otherwise would have 
reached him, and, in a degree very appreciable, interfered with and 
took away from him his facility of access to his lot; such interference 
not being intermittent and caused by the temporary use of the street 
by the passage of the vehicles of the defendant while it was operating 
its road through the street, but caused by the iron posts and by the 
superstructure imposed thereon, and existing for every moment of the 
day and night. Such a permanent, total, exclusive, and absolute ap¬ 
propriation of a portion of the street as this structure amounted to 
was held to be illegal and wholly beyond any legitimate or lawful use 
of a public street. The taking of the property of the plaintiff in that 
case was held to follow upon the permanent and exclusive nature of 
the appropriation by the defendant of the public street, or of some 
portion thereofS 

The distinction between the erection of an elevated structure for 
the exclusive use of a private corporation and the same structure 
for the use of public travel is clearly illustrated in the contrast 
in the decisions of Reining v. New York, L. & W. R. Co., 128 N. 
Y. 157, 14 T. R. A. 133, 28 N. E. 640, and Talbot v. New York 
& H. R. Co., 151 N. Y. 155, 45 N. E. 382. In the first case it was 
held that the abutting landowner had the right to compensation 
for the construction of a viaduct in the street for the practically 
exclusive occupation of a railroad. In the second case it was held 
that the abutting owner had no right of compensation for the erec¬ 
tion of a public bridge with inclined approaches and a guard wall, 
to carry travel over a railroad, although the structure impaired the 
access to his land. ♦ * * 

The trust upon which streets are held is that they shall be de¬ 
voted to the uses of public travel. When they, or a substantial 
part of them, are turned over to the exclusive use of a single per¬ 
son or corporation, we see no reason why a state court may not 
hold that it is a perversion of their legitimate uses, a violation of 
the trust, and the imposition of a new servitude. But the same 
court may consistently hold that with the acquisition of the fee, 
and in accordance with the trust, the city obtained the right to use 
the surface, the soil below, and the space above the surface, in any 
manner which is plainly designed to promote the ease, facility, and 
safety of all those who may desire to travel upon the streets; and 
that the rights attached to the adjoining land, or held by contract 
by its owner, are subordinate to such uses, whether they were fore¬ 
seen or not when the street was laid out. In earlier and simpler 
times the surface of the streets was enough to accommodate all 
travel. But under the more complex conditions of modern urban 
life, with its high and populous buildings, and its rapid interurban 
transportation, the requirements of public travel are largely in- 


TAKING AND INJURING PROPERTY 


357 


creased. Sometimes the increased demands may be met by sub¬ 
ways and sometimes by viaducts. The construction of either sole¬ 
ly for public travel may well be held by a state court to be a rea¬ 
sonable adaptation of the streets to the uses for which they were 
primarily designed. What we might hold on these questions 
where we had full jurisdiction of the subject, it is not necessary 
here even to consider. 

In basing its judgment on the broad, plain, and approved distinc¬ 
tion between the abandonment of the street to private uses and its 
further devotion to public uses, the court below overruled none of 
its decisions, but, on the contrary, acted upon the principles which 
they clearly declared. The plaintiff, therefore, has not shown that 
in his case the state court has changed, to his injury, the inter¬ 
pretation of his contract with the city, which it had previously 
made, and upon which he had the right to rely. * ♦ * 

Judgment affirmed. 

[McKenna, J., gave a dissenting opinion, in which Day, J., con¬ 
curred.] 


RIGNEY v. CHICAGO. 

(Supreme Court of Illinois, 1882. 102 Ill. 64.) 

[Appeal from a decision of the Appellate Court of the First Dis¬ 
trict, affirming a decision of the circuit court of Cook county. 
Plaintiff owned residential premises on Kinzie street in Chicago, 
220 feet east of Halsted street. Defendant city in 1874 construct¬ 
ed a viaduct for general street purposes along Halsted street and 
across Kinzie street, which cut off traffic between these two streets 
at their intersection, except by a flight of stairs. Halsted street 
was one of the main thoroughfares of Chicago, and this obstruc¬ 
tion reduced the value of plaintiff’s property from $5,000 to about 
$1,700. The defendant owned the streets in fee. Plaintiff sued, 
under the state Constitution of 1870, for the damage thus caused. 
The trial court directed a verdict for the defendant, and the Appel¬ 
late Court affirmed this. The constitutional provision in question 
appears in the opinion.] 

Mr. Justice MulkEy. ♦ ♦ ♦ Previous to, and at the time of 
the adoption of the present Constitution, it was the settled doc¬ 
trine of this court that any actual physical injury to private prop¬ 
erty, by reason of the erection, construction, or operation of a pub¬ 
lic improvement in or along a public street or highway, whereby 
its appropriate use or enjoyment was materially interrupted, or 
its value substantially impaired, was regarded as a taking of pri¬ 
vate property, within the meaning of the Constitution, to the ex¬ 
tent of the damages thereby occasioned, and actions for such in¬ 
juries were uniformly sustained. 



358 


RIGHT OF EMINENT DOMAIN 


This construction, making an actual physical invasion of the 
property affected the test in every case, excluded from the benefits 
of the Constitution many cases of great hardship, for, as in the 
present case, it often happened that while there was no actual 
physical injury to the property, yet the approaches to it were so 
cut off and destroyed as to leave it almost valueless. Under this 
condition of affairs the framers of the present Constitution, doubt¬ 
less with a view of giving greater security to private rights by 
affording relief in such cases of hardship where it had before been 
denied, declared therein that “private property shall not be taken 
or damaged for public use without just compensation.” The addi¬ 
tion of the words “or damaged” can hardly be regarded as acci¬ 
dental, or as having been used without any definite purpose. On 
the contrary, we regard them as significant, and expressive of a 
deliberate purpose to change the organic law of the state. ^ * 

It is conceded that some little confusion exists with respect to 
the use of the expression, “physical injury,” in connection with 
the term property; but it is believed this arises mainly from the 
ambiguous character of the latter term, and doubtless all the ap¬ 
parent [ly] conflicting expressions to be found in the opinions of 
this court upon this subject may be harmonized, upon the theory 
that the term property, in that connection, is used in different 
senses. Property, in its appropriate sense, means that dominion 
or indefinite right of user and disposition which one may lawfully 
exercise over particular things or subjects, and generally to the 
exclusion of all others, and doubtless this is substantially the sense 
in which it is used in the Constitution; yet the term is often used 
to indicate the res or subject of the property, rather than the prop¬ 
erty itself, and it is evidently used in this sense in some of the 
cases in connection with the expression physical injury, while at 
other times it is probably used in its more appropriate sense, as 
above mentioned. The meaning, therefore, of the expression 
“physical injury,” when used in connection with the term “prop¬ 
erty,” would in any case necessarily depend upon whether the 
term property was used in the one sense or the other. To illus¬ 
trate: If the lot and buildings of appellant are to be regarded as 
property, and not merely the subject of property, as strictly speak¬ 
ing they are, then there has clearly been no physical injury to it; 
but if by property is meant the right of user, enjoyment and dis¬ 
position of the lot and buildings, then it is evident there has been 
a direct physical interference with appellant’s property, and when 
considered from this aspect, it may appropriately be said the in¬ 
jury to the property is direct and physical. * * * 

Under the Constitution of 1848 it was essential to a right of re¬ 
covery, as we have already seen, that there should be a direct 
physical injury to the corpus or subject of the property, such as 


TAKING AND INJURING PROPERTY 


859 


overflowing it, casting sparks or cinders upon it, and the like; but 
under the present Constitution it is sufficient if there is a direct 
physical obstruction or injury to the right of user or enjoyment, by 
which the owner sustains some special pecuniary damage in ex¬ 
cess of that sustained by the public generally, which, by the com¬ 
mon law, would, in the absence of any constitutional or statutory 
provisions, give a right of action. * * ^ 

The question then recurs. What additional class of cases did the 
framers of the new Constitution intend to provide for which are 
not embraced in the old? While it is clear that the present Consti¬ 
tution was intended to afford redress in a certain class of cases for 
which there was no remedy under the old Constitution, yet we 
think it equally clear that it was not intended to reach every pos¬ 
sible injury that might be occasioned by a public improvement. 
There are certain injuries which are necessarily incident to the 
ownership of property in towns or cities which directly impair the 
value of private property, for which the law does not, and never 
has afforded any relief. For instance, the building of a jail, police 
station, or the like, will generally cause a direct depreciation in the 
value of neighboring property, yet that is clearly a case of dam¬ 
num absque injuria. So as to an obstruction in a public street,—if 
it does not practically affect the use or enjoyment of neighboring 
property, and thereby impair its value, no action will lie. In all 
cases, to warrant a recovery it must appear there has been some 
direct physical disturbance of a right, either public or private, 
which the plaintiff enjoys in connection with his property, and 
which gives to it an additional value, and that by reason of such 
disturbance he has sustained a special damage with respect to his 
property in excess of that sustained by the public generally. In 
the absence of any statutory or constitutional provisions on the 
subject, the common law afforded redress in all such cases, and 
we have no doubt it was the intention of the framers of the pres¬ 
ent Constitution to require compensation to be made in all cases 
where, but for some legislative enactment, an action would lie by 
the common law. 

The English courts, in construing certain statutes providing 
compensation for injuries occasioned by public improvements, in 
which the language is substantially the same as that in our present 
Constitution, after a most thorough consideration of the question, 
lay down substantially the same rule here announced. Chamber- 
land V. West End of London Railway Co., 2 Best & Smith, 605; 
Beckitt V. Midland Railway Co., L. R. 1 C. P. 241, on appeal 3 C. 
P. 82; McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 
508. These statutes required compensation to be made where 
property was “injuriously affected,^’ which the English courts 
construe as synonymous with the word “damaged.” Hall v. Mayor 


360 


RIGHT OF EMINENT DOMAIN 


of Bristol, L. R. 2 C. P. 322; East and West India Docks Co. v. 
Gattke, 3 McN. & G. 155. 

The rule we have adopted was unanimously sustained by the 
House of Lords iu the McCarthy Case, supra, and is believed to 
be in consonance with reason, justice, and sound legal principles, 
and while it has not heretofore been formulated in express terms, 
as now stated, yet the principles upon which the rule rests are 
fully recognized in the previous decisions of this court. ♦ * ♦ 

Judgment reversed. 

[Dickey, C. J., gave a concurring opinion. Scott, Craig, and 
Sheldon, JJ., dissented.] 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


361 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 
I. Liberty ^ 


ALLGEYER v. LOUISIANA. 

(Supreme Court of United States, 1897. 165 U. S. 578, 17 Sup. Ct. 427, 41 L. 

Ed. 832.) 

[Error to the Supreme Court of Louisiana. A Louisiana statute 
forbade, under penalty of a fine of $1,000 for each offence, any per¬ 
son, firm, or corporation from doing any act in that state to effect,, 
for himself or for another, insurance on property in the state, in 
any marine insurance company which had not complied with the 
laws of the state. E. Allgeyer & Co. made a contract in New 
York, with a New York insurance company not doing business in 
Louisiana, for an open policy of marine insurance for $200,000 
upon future shipments of cotton. By the terms of the policy All¬ 
geyer was to notify the company from time to time of shipments 
applicable to the policy, and the sending of such notices was a 
condition precedent to the attaching of the risk. A separate policy 
was issued in New York for each risk, the premium to be there 
paid in cash by Allgeyer. Allgeyer & Co. sent a notice of a ship¬ 
ment, under this contract, and remitted the premium from New 
Orleans to New York. The state court held them liable to the 
statutory penalty therefor, and this writ of error was taken.] 

Mr. Justice Peckham. ♦ * * this case the only act which 

it is claimed was a violation of the statute in question consisted 
in sending the letter through the mail notifying the company of the 
property to be covered by the policy already delivered. We have,, 
then, a contract which it is conceded was made outside and beyond 
the limits of the jurisdiction of the state of Louisiana, being made 
and to be performed within the state of New York, where the pre¬ 
miums were to be paid, and losses, if any, adjusted. The letter 
of notification did not constitute a contract made or entered into 
within the state of Louisiana. It was but the performance of an 
act rendered necessary by the provisions of the contract already 
made between the parties outside of the state. It was a mere no¬ 
tification that the contract already in existence would attach to 
that particular property. In any event, the contract was made in 
New York, outside of the jurisdiction of Louisiana, even though 
the policy was not to attach to the particular property until the 
notification was sent. 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 199, 206. 



362 CONSTITUTIONAL PROTECTION OF CIVIL BIGHTS 

It is natural that the state court should have remarked that there 
is in this “statute an apparent interference with the liberty of de¬ 
fendants in restricting their rights to place insurance on property 
of their own whenever and in what company they desired.” Such 
interference is not only apparent, but it is real, and we do not 
think that it is justified for the purpose of upholding what the 
state says is its policy with regard to foreign insurance companies 
which had not complied with the laws of the state for doing busi¬ 
ness within its limits. In this case the company did no business 
within the state, and the contracts were not therein made. 

The supreme court of Louisiana says that the act of writing 
within that state the letter of notification was an act therein done 
to effect an insurance on property then in the state, in a marine 
insurance company which had not complied with its laws, and such 
act was therefore prohibited by the statute. As so construed, we 
think the statute is a violation of the fourteenth amendment of the 
federal Constitution, in that it deprives the defendants of their 
liberty without due process of law. The statute which forbids such 
act does not become due process of law, because it is inconsistent 
with the provisions of the Constitution of the Union. The “lib¬ 
erty” mentioned in that amendment means, not only the right of 
the citizen to be free from the mere physical restraint of his per¬ 
son, as by incarceration, but the term is deemed to embrace the 
right of the citizen to be free in the enjoyment of all his faculties; 
to be free to use them in all lawful ways; to live and work where 
he will; to earn his livelihood by any lawful calling; to pursue 
any livelihood or avocation; and for that purpose to enter into 
all contracts which may be proper, necessary, and essential to his 
carrying out to a successful conclusion the purposes above men¬ 
tioned. 

It was said by Mr. Justice Bradley, in Butchers’ Union Slaugh¬ 
terhouse Co. V. Crescent City Live-Stock Landing Co., Ill U. S. 
746, at page 762, 4 Sup. Ct. 652, at page 657, 28 L. Ed. 585, in the 
course of his concurring opinion in that case, that “the right to 
follow any of the common occupations of life is an inalienable 
right. It was formulated as such under the phrase ‘pursuit of 
happiness’ in the Declaration of Independence, which commenced 
with the fundamental proposition that ‘all men are created equal; 
that they are endowed by their Creator with certain inalienable 
rights; that among these are life, liberty, and the pursuit of hap¬ 
piness.’ This right is a large ingredient in the civil liberty of the 
citizen.” Again, on page 764 of 111 U. S., and on page 658 of 4 
Sup. Ct. (28 L. Ed. 585), the learned justice said: “I hold that the 
liberty of pursuit—the right to follow any of the ordinary callings 
of life—is one of the privileges of a citizen of the United States.” 
And again, on page 765 of 111 U. S. and on page 658 of 4 Sup. 


LIBERTY 


363 


Ct. (28 L. Ed. 585) : “But if it does not abridge the privileges 
and immunities of a citizen of the United States to prohibit him 
from pursuing his chosen calling, and giving to others the exclu- 
*sive right of pursuing it, it certainly does deprive him (to a certain 
extent) of his liberty; for it takes from him the freedom of adopt¬ 
ing and following the pursuit which he prefers, which, as already 
intimated, is a material part of the liberty of the citizen.” It is 
true that these remarks were made in regard to questions of mo¬ 
nopoly, but they well describe the rights which are covered by 
the word “liberty,” as contained in the fourteenth amendment. 

Again, in Powell v. Pennsylvania, 127 U. S. 678, 684, 8 Sup. 
Ct. 992, 995, 1257, 32 L. Ed. 253, Mr. Justice Harlan, in stating the 
opinion of the court, said: “The main proposition advanced by 
the defendant is that his enjoyment upon terms of equality with 
all others in similar circumstances of the privilege of pursuing an 
ordinary calling or trade, and of acquiring, holding, and selling 
property, is an essential part of his rights of liberty and property, 
as guaranteed by the fourteenth amendment. The court assents 
to this general proposition as embodying a sound principle of con¬ 
stitutional law.” It was there held, however, that the legislation 
under consideration in that case did not violate any of the con¬ 
stitutional rights of the plaintiff in error. 

The foregoing extracts have been made for the purpose of show¬ 
ing what general definitions have been given in regard to the 
meaning of the word “liberty” as used in the amendment, but we 
do not intend to hold that in no such case can the state exercise 
its police power. When and how far such power may be legiti¬ 
mately exercised with regard to these subjects must be left for 
determination to each case as it arises. * * * 

In the privilege of pursuing an ordinary calling or trade, and 
of acquiring, holding, and selling property, must be embraced the 
right to make all proper contracts in relation thereto; and al¬ 
though it may be conceded that this right to contract in. relation 
to persons or property or to do business within the jurisdiction 
of the state may be regulated, and sometimes prohibited, when the 
contracts or business conflict with the policy of the state as con¬ 
tained in its statutes, yet the power does not and cannot extend to 
prohibiting a citizen from making contracts of the nature involved 
in this case outside of the limits and jurisdiction of the state, and 
which are also to be performed outside of such jurisdiction; nor 
can the state legally prohibit its citizens from doing such an act 
as writing this letter of notification, even though the property 
which is the subject of the insurance may at the time when such 
insurance attaches be within the limits of the state. The mere 
fact that a citizen may be within the limits of a particular state 
does not prevent his making a contract outside its limits while 


364 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

he himself remains within it. Milliken v. Pratt, 125 Mass. 374, 
28 Am. Rep. 241; Tilden v. Blair, 21 Wall. 241, 22 L. Ed. 632. 
The contract in this case was thus made. It was a valid contract, 
made outside of the state, to be performed outside of the state, 
although the subject was property temporarily within the state. 
As the contract was valid in the place where made and where it 
was to be performed, the party to the contract, upon whom is 
devolved the right or duty to send the notification in order that the 
insurance provided for by the contract may attach to the property 
specified in the shipment mentioned in the notice, must have the 
liberty to do that act and to give that notification within the limits 
of the state, any prohibition of the state statute to the contrary 
notwithstanding. The giving of the notice is a mere collateral 
matter. It is not the contract itself, but is an act performed pur¬ 
suant to a valid contract, which the state had no right or juris¬ 
diction to prevent its citizens from making outside the limits of 
the state. * * * 

Judgment reversed.^ _ 

BAILEY v. ALABAMA. 

(Supreme Court of IJnited States, 1911. 219 U. S. 219, 31 Sup. Ct. 145, 55 L. 

Ed. 191.) 

[Error to the Supreme Court of Alabama, which had affirmed 
the conviction of Bailey in the Montgomery city court for viola¬ 
tion of section 4730, Code of Alabama. The facts appear in the 
opinion.] 

Mr. Justice Hughe:s. * * ♦ The statute in question is sec¬ 

tion 4730 of the Code of Alabama of 1896, as amended in 1903 
and 1907 (Laws 1907, p. 636), * * * [which] reads as fol¬ 
lows : 3 * ♦ ♦ 

There is also a rule of evidence enforced by the courts of Ala¬ 
bama which must be regarded as having the same effect as if 

2 “The right to life includes the right of the individual to his body in it& 
completeness and without dismemberment; the right to liberty, the right to 
exercise his faculties and to follow a lawful avocation for the support of life; 
the right of proiJerty, the right to acquire, possess, and enjoy it in any way 
consistent with the equal rights of others and the just exactions and demands 
of the state.”—Andrews, J., in Bertholf v. O’Reilly, 74 N. Y. 509, 515, 30 Am. 
Rep. 323 (1878). 

3 “Any person who, with intent to injure or defraud his employer, enters 

into a contract in writing for the performance of any act of service, and there¬ 
by obtains money or other personal property from such employer, and with 
like intent, and without just cause, and without refunding such money, or 
paying for such property, refuses or fails to perform such act or service, must 
on conviction be punished by a fine in double the damage suffered by the in¬ 
jured party, but not more than $300, one half of said fine to go to the county 
and one half to the party injured; * ♦ ♦ and the refusal or failure of 

any person, who enters into such contract, to perform such act or service, 
* * * or pay for such property, without just cause, shall be prima facie 

evidence of the intent to injure his employer or landlord or defraud him.” 



LIBERTY 


365 


read into the statute itsdf, that the accused, for the purpose of 
rebutting the statutory presumption, shall not be allowed to testify 
■“as to his uncommunicated motives, purpose, or intention/’ Bail¬ 
ey V. State, 161 Ala. 77, 78, 49 South. 886. * * * 

We at once dismiss from consideration the fact that the plaintiff 
in error is a black man. * * * 'I'hg statute, on its face, makes 

no racial discrimination, and the record fails to show its existence 
in fact. * * * 

Prima facie evidence is sufficient evidence to outweigh the pre¬ 
sumption of innocence, and, if not met by opposing evidence, to 
support a verdict of guilty. “It is such as, in judgment of law, 
is sufficient to establish the fact; and, if not rebutted, remains 
sufficient for the purpose.” Kelly v. Jackson, 6 Pet. 632, 8 L. Ed. 
526. * * * 

It is not sufficient to declare that the statute does not make it 
the duty of the jury to convict, where there is no other evidence 
but the breach of the contract and the failure to pay the debt. The 
point is that, in such a case, the statute authorizes the jury to con¬ 
vict. It is not enough to say that the jury may not accept that 
evidence as alone sufficient; for the jury may accept it, and they 
have the express warrant of the statute to accept it as a basis 
for their verdict. And it is in this light that the validity of the 
statute must be determined. * * * 

While, in considering the natural operation and effect of the 
statute, as amended, we are not limited to the particular facts of 
the case at the bar, they present an illuminating illustration. We 
may briefly restate them. Bailey made a contract to work for a 
year at $12 a month. He received $15, and he was to work this 
out, being entitled monthly only to $10.75 of his wages. No one 
was present when he made the contract but himself and the mana¬ 
ger of the employing company. There is not a particle of evidence 
of any circumstance indicating that he made the contract or re¬ 
ceived the money with any intent to injure or defraud his em¬ 
ployer. On the contrary, he actually worked for upwards of a 
month. His motive in leaving does not appear, the only showing 
being that it was without legal excuse and that he did not repay 
the money received. For this he is sentenced to a fine of $30 and 
to imprisonment at hard labor, in default of the payment of the 
fine and costs, for 136 days. Was not the case the same in effect as 
if the statute had made it a criminal act to leave the service without 
just cause and without liquidating the debt? To say that he has 
been found guilty of an intent to injure or defraud his employer, 
and not merely for breaking his contract and not paying his debt, 
is a distinction without a difference to Bailey. 

Consider the situation of the accused under this statutory pre¬ 
sumption. If, at the outset, nothing took place but the making of 


3G6 CONSTITUTIONAL PROTECTION OP CIVIL RIGHTS 

the contract and the receipt of the money, he could show nothing 
else. If there was no legal justification for his leaving his employ¬ 
ment, he could show none. If he had not paid the debt, there was 
nothing to be said as to that. The law of the state did not permit 
him to testify that he did not intend to injure or defraud. Unless 
he were fortunate enough to be able to command evidence of cir¬ 
cumstances affirmatively showing good faith, he was helpless. He 
stood, stripped by the statute of the presumption of innocence, 
and exposed to conviction for fraud upon evidence only of breach 
of contract and failure to pay. * ^ * 

[After referring to Toney v. State, 141 Ala. 120, 37 South. 332, 
67 L. R. A. 286, 109 Am. St. Rep. 23, 3 Ann. Cas. 319:] We can¬ 
not escape the conclusion that, although the statute in terms is to 
punish fraud, still its natural and inevitable efifect is to expose to 
conviction for crime those who simply fail or refuse to perform 
contracts for personal service in liquidation of a debt; and judg¬ 
ing its purpose by its efifect, that it seeks in this way to provide the 
means of compulsion through which performance of such service 
may be secured. The question is whether such a statute is con¬ 
stitutional. 

This court has frequently recognized the general power of every 
legislature to prescribe the evidence which shall be received, and 
the efifect of that evidence, in the courts of its own government. 
Fong Yue Ting v. United States, 149 U. S. 698, 749, 13 Sup. Ct. 
1016, 37 T. Ed. 905, 925. In the exercise of this power numerous 
statutes have been enacted providing that proof of one fact shall 
be prima facie evidence of the main fact in issue; and where the 
inference is not purely arbitrary, and there is a rational relation 
between the two facts, and the accused is not deprived of a proper 
opportunity to submit all the facts bearing upon the issue, it has 
been held that such statutes do not violate the requirements of due 
process of law. * * * 

In this class of cases where the entire subject-matter of the leg¬ 
islation is otherwise within state control, the question has been 
whether the prescribed rule of evidence interferes with the guar¬ 
anteed equality before the law, or violates those fundamental rights 
and immutable principles of justice which are embraced within 
the conception of due process of law. But where the conduct or 
fact, the existence of which is made the basis of the statutory pre¬ 
sumption, itself falls within the scope of a provision of the federal 
Constitution, a further question arises. It is apparent that a con¬ 
stitutional prohibition cannot be transgressed indirectly by the cre¬ 
ation of a statutory presumption any more than it can be violated 
by direct enactment. The power to create presumptions is not a 
means of escape from constitutional restrictions. And the state 
may not in this way interfere with matters withdrawn from its 


LIBERTY 


367 


authority by the federal Constitution, or subject an accused to 
conviction for conduct which it is powerless to prescribe. 

In the present case it is urged that the statute as amended, 
through the operation of the presumption for which it provides, 
violates the thirteenth amendment of the Constitution of the Unit¬ 
ed States and the act of Congress passed for its enforcement. 

The thirteenth amendment provides: 

“Section 1. Neither slavery nor involuntary servitude, except 
as a punishment for crime whereof the party shall have been duly 
convicted, shall exist within the United States, or any place sub¬ 
ject to their jurisdiction. 

“Section 2. Congress shall have power to enforce this article by 
appropriate legislation.” 

Pursuant to the authority thus conferred. Congress passed the 
act of March 2, 1867 [14 Stat. 546, c. 187), the provisions of which 
are now found in sections 1990 and 5526 of the Revised Statutes 
(U. S. Comp. Stat. 1901, pp. 1266, 3715), as follows:^ * * * 

The act of March 2, 1867 (Rev. Stat. §§ 1990 and 5526, supra), 
was a valid exercise of this express authority. Clyatt v. United 
States, 197 U. S. 207, 25 Sup. Ct. 429, 49 U. Ed. 726. * * * 

The fact that the debtor contracted to perform the labor which 
is sought to be compelled does not withdraw the attempted en¬ 
forcement from the condemnation of the statute. The full intent 
of the constitutional provision could be defeated with obvious fa¬ 
cility if, through the guise of contracts under which advances had 
been made, debtors could be held to compulsory service. It is the 
compulsion of the service that the statute inhibits, for when that 
occurs, the condition of servitude is created, which would be not 
less involuntary because of the original agreement to work out 
the indebtedness. The contract exposes the debtor to liability for 
the loss due to the breach, but not to enforced labor. This has 
been so clearly stated by this court in the Case of Clyatt, supra, 
that discussion is unnecessary. The court there said: “The con¬ 
stitutionality and scope of sections 1990 and 5526 present the first 
questions for our consideration. They prohibit peonage. What 

4 “Sec. 1990. The holding of any person to service or labor under the sys¬ 
tem known as peonage is abolished and forever prohibited in the territory of 
New Mexico, or in any other territory or state of the United States; and all 
acts, laws, resolutions, orders, regulations, or usages of the territory of New 
Mexico, or of any other territory or state, which have heretofore established, 
maintained, or enforced, or by virtue of which any attempt shall hereafter 
be made to establish, maintain, or enforce, directly or indirectly, the volun¬ 
tary or involuntary service or labor of any persons as peons, in liquidation of 
any debt or obligation, or otherwise, are declared null and void.” 

“Sec. 5526. Every person who holds, arrests, returns, or causes to be held, 
arrested, or returned, or in any manner aids in the arrest or return, of any 
person to a condition of peonage, shall be punished by a fine of not less than 
one thousand nor more than five thousand dollars, or by imprisonment not 
less than one year nor more than five years, or by both.” 


368 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

is peonage? It may be defined as a status or condition of com¬ 
pulsory service, based upon the indebtedness of the peon to the 
master. The basal fact is indebtedness. * * * Peonage is 
sometimes classified as voluntary or involuntary, but this implies 
simply a difference in the mode of origin, but none in the character 
of the servitude. The one exists where the debtor voluntarily 
contracts to enter the service of his creditor. The other is forced 
upon the debtor by some provision of law. But peonage, however 
created, is compulsory service, involuntary servitude. The peon 
can release himself therefrom, it is true, by the payment of the 
debt, but otherwise the service is enforced. A clear distinction 
exists between peonage and the voluntary performance of labor 
or rendering of services in payment of a debt. In the latter case 
the debtor, though contracting to pay his indebtedness by labor 
or service, and subject like any other contractor to an action for 
damages for breach of that contract, can elect at any time to break 
it, and no law or force compels performance or a continuance of 
the service. We need not stop to consider any possible limits or 
exceptional cases, such as the service of a sailor (Robertson v. 
Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715), or the 
obligations of a child to its parents, or of an apprentice to his 
master, or the power of the legislature to make unlawful and pun¬ 
ish criminally an abandonment by an employee of his post of 
labor in any extreme cases. That which is contemplated by the 
statute is compulsory service to secure the payment of a debt.^’ 
197 U. S. 215, 216, 25 Sup. Ct. 430, 49 L. Ed. 726. 

The act of Congress, nullifying all state laws by which it should 
be attempted to enforce the “service or labor of any persons as 
peons, in liquidation of any debt or obligation, or otherwise,” 
necessarily embraces all legislation which seeks to compel the 
service or labor by making it a crime to refuse or fail to perform it. 
Such laws would furnish the readiest means of compulsion. The 
thirteenth amendment prohibits involuntary servitude except as 
punishment for crime. But the exception, allowing full latitude for 
the enforcement of penal laws, does not destroy the prohibition. 
It does not permit slavery or involuntary servitude to be estab¬ 
lished or maintained through the operation of the criminal law by 
making it a crime to refuse to submit to the one or to render the 
service which would constitute the other. The state may impose 
involuntary servitude as a punishment for crime, but it may not 
compel one man to labor for another in payment of a debt, by pun¬ 
ishing him as a criminal if he does not perform the service or 
pay the debt. 

If the statute in this case had authorized the employing company 
to seize the debtor, and hold him to the service until he paid the 
$15, or had furnished the equivalent in labor, its invalidity would 


LIBERTY 


369 


not be questioned. It would be equally clear that the state could 
not authorize its constabulary to prevent the servant from escap¬ 
ing, and to force him to work out his debt. But the state could not 
avail itself of the sanction of the criminal law to supply the com¬ 
pulsion any more than it could use or authorize the use of physical 
force. “In contemplation of the law, the compulsion to such serv¬ 
ice by the fear of punishment under a criminal statute is more 
powerful than any guard which the employer could station.” Ex 
parte Hollman, 79 S. C. 22, 60 S. E. 24, 21 L. R. A. (N. S.) 249, 
14 Ann. Cas. 1109. 

What the state may not do directly it may not do indirectly. 
If it cannot punish the servant as a criminal for the mere failure 
or refusal to serve without paying his debt, it is not permitted to 
accomplish the same result by creating a statutory presumption 
which, upon proof of no other fact, exposes him to conviction and 
punishment. ^ * There is no more important concern than 

to safeguard the freedom of labor upon which alone can enduring 
prosperity be based. * * * The act of Congress deprives of 

effect all legislative measures of any state through which, directly 
or indirectly, the prohibited thing, to wit, compulsory service to 
secure the payment of a debt, may be established or maintained; 
and we conclude that section 4730, as amended, of the Code of 
Alabama, in so far as it makes the refusal or failure to perform 
the act or service, without refunding the money or paying for the 
property received, prima facie evidence of the commission of the 
crime which the section defines, is in conflict with the thirteenth 
amendment, and the legislation authorized by that amendment, 
and is therefor invalid. ♦ * ♦ 

Judgment reversed. 

[Holmrs, J., gave a dissenting opinion, in which Lurton, J., 
concurred, on the ground that the thirteenth amendment did not 
forbid a state to make breach of contract a crime with the usual 
penal consequences. “Compulsory work for no private master in 
a jail is not peonage” (219 U. S. 247, 31 Sup. Ct. 153, 55 L. Ed. 
191).] 

Hall Cases Const.L.—24 


370 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


II. Equal Protection of the Laws ® 


Ex parte VIRGINIA. 

(Supreme Court of United States, 1880. 100 U. S. 339, 25 U. Ed. 676.) 

[Petition for a writ of habeas corpus. One Coles, a county court 
judge of Virginia, was indicted in the federal District Court of 
that state and arrested, charged with violating the statute quoted 
in the opinion below, in that he excluded colored persons from the 
jury lists made out by him, on account of their race, color, and 
previous condition of servitude. The state statute under which 
he acted made no discrimination against the colored race, but re¬ 
quired him to prepare a jury list of inhabitants of the county that 
in his opinion were “well qualified to serve as jurors,’' “of sound 
judgment and free from legal exception.” He and the state of 
Virginia both sought his discharge by habeas corpus.] 

Mr. Justice Strong. * * * [After holding the petition to be 

within the appellate jurisdiction of the court:] 

The indictment and bench-warrant, in virtue of which the peti¬ 
tioner Coles has been arrested and is held in custody, have their 
justification,—if any they have,—in the Act of Congress of March 
1, 1875, sect. 4. 18 Stat., part 3, 336. That section enacts that 

“no citizen possessing all other qualifications which are or may 
be prescribed by law shall be disqualified for service as grand or 
petit juror in any court of the United States, or of any state, on ac¬ 
count of race, color, or previous condition of servitude; and any 
officer or other person charged with any duty in the selection or 
summoning of jurors who shall exclude or fail to summon any 
citizen for the cause aforesaid shall, on conviction thereof, be 
deemed guilty of a misdemeanor, and be fined not more than $5,- 
000.” The defendant has been indicted for the misdemeanor de¬ 
scribed in this act, and it is not denied that he is now properly 
held in custody to answer the indictment, if the Act of Congress 
was warranted by the Constitution. The whole merits of the case 
are involved in the question, whether the act was thus warranted. 
[The provisions of the Constitution that relate to this subject are 
found in the thirteenth and fourteenth amendments.] * * 

One great purpose of these amendments was to raise the colored 
race from that condition of inferiority and servitude in which 
most of them had previously stood, into perfect equality of civil 
rights with all other persons within the jurisdiction of the states. 
They were intended to take away all possibility of oppression by 

« For discussion of principles, see Black, Const Law (3d Ed.) § 209. 



EQUAL PROTECTION OP THE LAWS 


371 


law because of race or color. They were intended to be, what they 
really are, limitations of the power of the states and enlargements 
of the power of Congress. They are to some extent declaratory of 
rights, and though in form prohibitions, they imply immunities, 
such as may be protected by congressional legislation. * * * 

This protection and this guarantee, as the fifth section of the 
amendment expressly ordains, may be enforced by Congress by 
means of appropriate legislation. 

All of the amendments derive much of their force from this latter 
provision. It is not said the judicial power of the general govern¬ 
ment shall extend to enforcing the prohibitions and to protecting 
the rights and immunities guaranteed. It is not said that branch 
of the government shall be authorized to declare void any action 
of a state in violation of the prohibitions. It is the power of Con¬ 
gress which has been enlarged. Congress is authorized to enforce 
the prohibitions by appropriate legislation. Some legislation is 
contemplated to make the amendments fully effective. Whatever 
legislation is appropriate, that is, adapted to carry out the objects 
the amendments have in view, whatever tends to enforce submis¬ 
sion to the prohibitions they contain, and to secure to all persons 
the enjoyment of perfect equality of civil rights and the equal pro¬ 
tection of the laws against state denial or invasion, if not prohibit¬ 
ed, is brought within the domain of congressional power. * * * 

We have said the prohibitions of the fourteenth amendment are 
addressed to the states. They are, “No state shall make or en¬ 
force a law which shall abridge the privileges or immunities of 
citizens of the United States, * * * nor deny to any person 

within its jurisdiction the equal protection of the laws.’' They 
have reference to actions of the political body denominated a state, 
by whatever instruments or in whatever modes that action may 
be taken. A state acts by its legislative, its executive, or its judi¬ 
cial authorities. It can act in no other way. The constitutional 
provision, therefore, must mean that no agency of the state, or of 
the officers or agents by whom its powers are exerted, shall deny 
to any person within its jurisdiction the equal protection of the 
laws. Whoever, by virtue of public position under a state govern¬ 
ment, deprives another of property, life, or liberty, without due 
process of law, or denies or takes away the equal protection of 
the laws, violates the constitutional inhibition; and as he acts in 
the name and for the state, and is clothed with the state’s power, 
his act is that of the state. This must be so, or the constitutional 
prohibition has no meaning. Then the state has clothed one of 
its agents with power to annul or to evade it. * * ♦ [Ken¬ 

tucky V. Dennison, 24 How. 66, 16 L. Ed. 717, is here distinguished, 
on the ground that the fourteenth amendment, § 5, expressly au¬ 
thorizes congressional enforcement.] 


372 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

We do not perceive how holding an office under a state, and 
claiming to act for the state, can relieve the holder from obligation 
to obey the Constitution of the United States, or take away the 
power of Congress to punish his disobedience. 

It was insisted during the argument on behalf of the petitioner 
that Congress cannot punish a state judge for his official acts; 
and it was assumed that Judge Coles, in selecting the jury as he 
did, was performing a judicial act. This assumption cannot be 
admitted. Whether the act done by him was judicial or not is to 
be determined by its character, and not by the character of the 
agent. Whether he was a county judge or not is of no importance. 
The duty of selecting jurors might as well have been committed 
to a private person as to one holding the office of a judge. It 
often is given to county commissioners, or supervisors, or asses¬ 
sors. In former times, the selection was made by the sheriff. In 
such cases, it surely is not a judicial act, in any such sense as is 
contended for here. It is merely a ministerial act, as much so as 
the act of a sheriff holding an execution, in determining upon what 
piece of property he will make a levy, or the act of a roadmaster 
in selecting laborers to work upon the roads. That the jurors are 
selected for a court makes no difference. So are court-criers, tip- 
staves, sheriffs, &c. Is their election or their appointment a ju¬ 
dicial act? 

But if the selection of jurors could be considered in any case a 
judicial act, can the act charged against the petitioner be consid¬ 
ered such when he acted outside of his authority and in direct vio¬ 
lation of the spirit of the state statute? That statute gave him 
no authority, when selecting jurors, from whom a panel might be 
drawn for a circuit court, to exclude all colored men merely be¬ 
cause they were colored. Such an exclusion was not left within 
the limits of his discretion. It is idle, therefore, to say that the 
Act of Congress is unconstitutional because it inflicts penalties 
upon state judges for their judicial action. It does no such 
thing. ♦ ♦ * 

Petition denied. 

[Fii;ld, J., gave a dissenting opinion, in which Clii^Ford, J., 
concurred, upon the ground, among others, that the act of select¬ 
ing state jurors was an act of judicial discretion and not subject 
to federal control.] 


EQUAL PROTECTION OF THE LAWS 


373 


CIVIL RIGHTS CASES. 

(Supreme Court of United States, 1883. 1^9 U. S. 3, 3 Sup. Ct. 18, 27 U. 

Ed. 835.) 

[Writs of error to federal Circuit Courts and certificates of di¬ 
vision of opinion among the judges below in a number of cases in¬ 
volving the constitutionality of the act of Congress known as the 
Civil Rights Act. Various colored persons had been denied by the 
proprietors of hotels, theaters, and railway companies the full en¬ 
joyment of the accommodations thereof, for reasons other than 
those excepted by said statute, and those proprietors had been 
indicted or sued for the penalty prescribed by the act. The act 
provided (see note below).®] 

Mr. Justice Bradle^y. * * * Are these sections constitution¬ 

al? The first section, which is the principal one, cannot be fairly 
understood without attending to the last clause, which qualifies the 
preceding part. The essence of the law is, not to declare broadly 
that all persons shall be entitled to the full and equal enjoyment of 
the accommodations, advantages, facilities, and privileges of inns, 
public conveyances and theaters; but that such enjoyment shall 
not be subject to any conditions applicable only to citizens of a 
particular race or color, or who had been in a previous condition of 
servitude. In other words, it is the purpose of the law to declare 
that, in the enjoyment of the accommodations and privileges of 
inns, public conveyances, theaters, and other places of public 
amusement, no distinction shall be made between citizens of dif¬ 
ferent race or color, or between those who have, and those who 
have not, been slaves. Its effect is to declare that in all inns, 
public conveyances, and places of amusement, colored citizens, 
whether formerly slaves or not, and citizens of other races, shall 
have the same accommodations and privileges in all inns, public 
conveyances, and places of amusement, as are enjoyed by white 
citizens; and vice versa. The second section makes it a penal 
offense in any person to deny to any citizen of any race or color, 
regardless of previous servitude, any of the accommodations or 
privileges mentioned in the first section. 

Has congress constitutional power to make such a law? Of 

« “Section 1. That all persons within the jurisdiction of the United States 
shall be entitled to the full and equal enjoyment of the accommodations, ad¬ 
vantages, facilities, and privileges of inns, public conveyances on land or wa¬ 
ter, theaters, and other places of public amusement; subject only to the con¬ 
ditions and limitations established by law, and applicable alike to citizens of 
every race and color, regardless of any previous condition of servitude. 

“Sec. 2. That any person who shall violate the foregoing section by deny¬ 
ing to any citizen, except for reasons by law applicable to citizens of every 
race and color, and regardless of any previous condition of servitude, the full 
enjoyment of any of the” aforesaid accommodations, etc., shall for each offence 
forfeit the sum of $500 to the person aggrieved and be guilty of a misde¬ 
meanor, these remedies being enforceable in the alternative. 


374 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


course, no one will contend that the power to pass it was contained 
in the Constitution before the adoption of the last three amend¬ 
ments. The power is sought, first, in the fourteenth amendment, 
and the views and arguments of distinguished senators, advanced 
while the law was under consideration, claiming authority to pass 
it by virtue of that amendment, are the principal arguments ad¬ 
duced in favor of the power. We have carefully considered those 
arguments, as was due to the eminent ability of those who put 
them forward, and have felt, in all its force, the weight of au¬ 
thority which always invests a law that congress deems itself com¬ 
petent to pass. But the responsibility of an independent judg¬ 
ment is now thrown upon this court; and we are bound to exer¬ 
cise it according to the best lights we have. 

The first section of the fourteenth amendment,—which is the 
one relied on,—after declaring who shall be citizens of the United 
States, and of the several states, is prohibitory in its character, 
and prohibitory upon the states. It declares that “no state shall 
make or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States; nor shall any state 
deprive any person of life, liberty, or property without due process 
of law; nor deny to any person within its jurisdiction the equal 
protection of the laws.” It is state action of a particular charac¬ 
ter that is prohibited. Individual invasion of individual rights is 
not the subject-matter of the amendment. It has a deeper and 
broader scope. It nullifies and makes void all state legislation, 
and state action of every kind, which impairs the privileges and 
immunities of citizens of the United States, or which injures them 
in life, liberty, or property without due process of law, or which 
denies to any of them the equal protection of the laws. It not 
only does this, but, in order that the national will, thus declared, 
may not be a mere brutum fulmen, the last section of the amend¬ 
ment invests congress with power to enforce it by appropriate leg¬ 
islation. To enforce what? To enforce the prohibition. To adopt 
appropriate legislation for correcting the effects of such prohibited 
state law and state acts, and thus to render them effectually null, 
void, and innocuous. This is the legislative power conferred upon 
congress, and this is the whole of it. It does not invest congress 
with power to legislate upon subjects which are within the domain 
of state legislation; but to provide modes of relief against state 
legislation, or state action, of the kind referred to. It does not 
authorize congress to create a code of municipal law for the reg¬ 
ulation of private rights; but to provide modes of redress against 
the operation of state laws, and the action of state officers, execu¬ 
tive or judicial, when these are subversive of the fundamental 
rights specified in the amendment. Positive rights and privileges 
are undoubtedly secured by the fourteenth amendment; but they 


EQUAL PROTECTION OF THE LAWS 


375 


are secured by way of prohibition against state laws and state pro¬ 
ceedings affecting those rights and privileges, and by power given 
to congress to legislate for the purpose of carrying such prohibi¬ 
tion into effect; and such legislation must necessarily be predi¬ 
cated upon such supposed state laws or state proceedings, and 
be directed to the correction of their operation and eftect. A quite 
full discussion of this aspect of the amendment may be found in 
U. S. V. Cruikshank, 92 U. S. 542, 23 L,. Ed. 588, Virginia v. Rives, 
100 U. S. 313, 25 L. Ed. 667, and Ex parte Virginia, 100 U. S. 339, 
25 L. Ed. 676. 

An apt illustration of this distinction may be found in some of 
the provisions of the original Constitution. Take the subject of 
contracts, for example. The Constitution prohibited the states 
from passing any law impairing the obligation of contracts. This 
did not give to congress power to provide laws for the general 
enforcement of contracts; nor power to invest the courts of the 
United States with jurisdiction over contracts, so as to enable par¬ 
ties to sue upon them in those courts. It did, however, give the 
power to provide remedies by which the impairment of contracts 
by state legislation might be counteracted and corrected; and 
this power was exercised. The remedy which congress actually 
provided was that contained in the twenty-fifth section of the judi¬ 
ciary act of 1789 [1 Stat. 85], giving to the Supreme Court of the 
United States jurisdiction by writ of error to review the final de¬ 
cisions of state courts whenever they should sustain the validity 
of a state statute or authority, alleged to be repugnant to the Con¬ 
stitution or laws of the United States. By this means, if a state 
law was passed impairing the obligation of a contract, and the 
state tribunals sustained the validity of the law, the mischief could 
be corrected in this court. The legislation of congress, and the 
proceedings provided for under it, were corrective in their charac¬ 
ter. No attempt was made to draw into the United States courts 
the litigation of contracts generally, and no such attempt would 
have been sustained. We do not say that the remedy provided 
was the only one that might have been provided in that case. 
Probably congress had power to pass a law giving to the courts of 
the United States direct jurisdiction over contracts alleged to be 
impaired by a state law; and, under the broad provisions of the 
act of March 3, 1875 [18 Stat. 470, c. 137], giving to the circuit 
courts jurisdiction of all cases arising under the Constitution and 
laws of the United States, it is possible that such jurisdiction now 
exists. But under that or any other law, it must appear, as well 
by allegation as proof at the trial, that the Constitution had been 
violated by the action of the state legislature. Some obnoxious 
state law passed, or that might be passed, is necessary to be as¬ 
sumed in order to lay the foundation of any federal remedy in the 


376 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

case, and for the very sufficient reason that the constitutional pro¬ 
hibition is against state laws impairing the obligation of contracts. 

And so in the present case, until some state law has been passed, 
or some state action through its officers or agents has been taken, 
adverse to the rights of citizens sought to be protected by the 
fourteenth amendment, no legislation of the United States under 
said amendment, nor any proceeding under such legislation, can 
be called into activity, for the prohibitions of the amendment are 
against state laws and acts done under state authority. Of course, 
legislation may and should be provided in advance to meet the 
exigency when it arises, but it should be adapted to the mischief 
and wrong which the amendment was intended to provide against; 
and that is, state laws or state action of some kind adverse to the 
rights of the citizen secured by the amendment. Such legislation 
cannot properly cover the whole domain of rights appertaining to 
life, liberty, and property, defining them and providing for their 
vindication. That would be to establish a code of municipal law 
regulative of all private rights between man and man in society. 
It would be to make congress take the place of the state legisla¬ 
tures and to supersede them. It is absurd to affirm that, because 
the rights of life, liberty, and property (which include all civil 
rights that men have) are by the amendment sought to be pro¬ 
tected against invasion on the part of the state without due process 
of law, congress may, therefore, provide due process of law for 
their vindication in every case; and that, because the denial by a 
state to any persons of the equal protection of the laws is pro¬ 
hibited by the amendment, therefore congress may establish laws 
for their equal protection. In fine, the legislation which congress 
is authorized to adopt in this behalf is not general legislation upon 
the rights of the citizen, but corrective legislation; that is, such 
as may be necessary and proper for counteracting such laws as the 
states may adopt or enforce, and which by the amendment they 
are prohibited from making or enforcing, or such acts and proceed¬ 
ings as the states may commit or take, and which by the amend¬ 
ment they are prohibited from committing or taking. It is not 
necessary for us to state, if we could, what legislation would be 
proper for congress to adopt. It is sufficient for us to examine 
whether the law in question is of that character. 

An inspection of the law shows that it makes no reference what¬ 
ever to any supposed or apprehended violation of the fourteenth 
amendment on the part of the states. It is not predicated on any 
such view. It proceeds ex directo to declare that certain acts com¬ 
mitted by individuals shall be deemed offenses, and shall be prose¬ 
cuted and punished by proceedings in the courts of the United 
States. It does not profess to be corrective of any constitutional 
wrong committed by the states; it does not make its operation 


EQUAL PROTECTION OP THE LAWS 


377 


to depend upon any such wrong committed. It applies equally to 
cases arising in states which have the justest laws respecting the 
personal rights of citizens, and whose authorities are ever ready 
to enforce such laws as to those which arise in states that may have 
violated the prohibition of the amendment. In other words, it 
steps into the domain of local jurisprudence, and lays down rules 
for the conduct of individuals in society towards each other, and 
imposes sanctions for the enforcement of those rules, without re¬ 
ferring in any manner to any supposed action of the state or its 
authorities. 

If this legislation is appropriate for enforcing the prohibitions 
of the amendment, it is difficult to see where it is to stop. Why 
may not congress, with equal show of authority, enact a code of 
laws for the enforcement and vindication of all rights of life, lib¬ 
erty, and property? If it is supposable that the states may deprive 
persons of life, liberty, and property without due process of law,, 
(and the amendment itself does suppose this,) why should not con¬ 
gress proceed at once to prescribe due process of law for the pro¬ 
tection of every one of these fundamental rights, in every possi¬ 
ble case, as well as to prescribe equal privileges in inns, public 
conveyances, and theaters. The truth is that the implication of a 
power to legislate in this manner is based upon the assumption 
that if the states are forbidden to legislate or act in a particular 
way on a particular subject, and power is conferred upon congress 
to enforce the prohibition, this gives congress power to legislate 
generally upon that subject, and not merely power to provide 
modes of redress against such state legislation or action. The as¬ 
sumption is certainly unsound. It is repugnant to the tenth 
amendment of the Constitution, which declares that powers not 
delegated to the United States by the Constitution, nor prohibited 
by it to the states, are reserved to the states respectively or to 
the people. 

We have not overlooked the fact that the fourth section of the 
act now under consideration has been held by this court to be con¬ 
stitutional. That section declares “that no citizen, possessing all 
other qualifications which are or may be prescribed by law, shall 
be disqualified fpr service as grand or petit juror in any court of 
the United States, or of any state, on account of race, color, or 
previous condition of servitude; and any officer or other person 
charged with any duty in the selection or summoning of jurors 
who shall exclude or fail to summon any citizen for the cause 
aforesaid, shall, on conviction thereof, be deemed guilty of a mis¬ 
demeanor, and be fined not more than five thousand dollars.” In 
Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676, it was held that 
an indictment against a state officer under this section for ex¬ 
cluding persons of color from the jury list is sustainable. But 


378 CONSTITUTIONAL PROTECTION OP CIVIL RIGHTS 

a moment’s attention to its terms will show that the section is 
entirely corrective in its character. Disqualifications for service 
on juries are only created by the law, and the first part of the sec¬ 
tion is aimed at certain disqualifying laws, namely, those which 
make mere race or color a disqualification; and the second clause 
is directed against those who, assuming to use the authority of the 
state government, carry into effect such a rule of disqualification. 
In the Virginia case, the state, through its officer, enforced a rule 
of disqualification which the law was intended to abrogate and 
counteract. Whether the statute-book of the state actually laid 
down any such rule of disqualification or not, the state, through 
its officer, enforced such a rule; and it is against such state action, 
through its officers and agents, that the last clause of the section 
is directed. This aspect of the law was deemed sufficient to divest 
it of any unconstitutional character, and makes it differ widely 
from the first and second sections of the same act which we are 
now considering. * * 

[After distinguishing the so-called ''Civil Rights Bill” of 1866 
and 1868 (14 Stat. 27; 16 Stat. 140), which made guilty of a mis¬ 
demeanor any person who, under color of any law, statute, ordi¬ 
nance, regulation or custom, subjected any inhabitant of a state 
or territory to the deprivation of any of certain enumerated im¬ 
portant civil rights:] The civil rights bill here referred to is anal¬ 
ogous in its character to what a law would have been under the 
original Constitution, declaring that the validity of contracts 
should not'be impaired, and that if any person bound by a con¬ 
tract should refuse to comply with it under color or pretense that 
it had been rendered void or invalid by a state law, he should be 
liable to an action upon it in the courts of the United States, with 
the addition of a penalty for setting up such an unjust and uncon¬ 
stitutional defense. 

In this connection it is proper to state that civil rights, such as 
are guaranteed by the Constitution against state aggression, can¬ 
not be impaired by the wrongful acts of individuals, unsupported 
by state authority in the shape of laws, customs, or judicial or ex¬ 
ecutive proceedings. The wrongful act of an individual, unsup¬ 
ported by any such authority, is simply a private wrong, or a 
crime of that individual; an invasion of the rights of the injured 
party, it is true, whether they affect his person, his property, or 
his reputation; but if not sanctioned in some way by the state, 
or not done under state authority, his rights remain in full force, 
and may presumably be vindicated by resort to the laws of the 
state for redress. An individual cannot deprive a man of his right 
to vote, to hold property, to buy and sell, to sue in the courts, or 
to be a witness or a juror; he may, by force or fraud, interfere 
with the enjoyment of the right in a particular case; he may com- 


EQUAL PROTECTION OF THE LAWS 


379 


mit an assault against the person, or commit murder, or use ruf¬ 
fian violence at the polls, or slander the good name of a fellow- 
citizen; but unless protected in these wrongful acts by some 
shield of state law or state authority, he cannot destroy or injure 
the right; he will only render himself amenable to satisfaction or 
punishment; and amenable therefor to the laws of the state 
where the wrongful acts are committed. Hence, in all those cases 
where the Constitution seeks to protect the rights of the citizens 
against discriminative and unjust laws of the state by prohibiting 
such laws, it is not individual offenses, but abrogation and denial 
of rights, which it denounces, and for which it clothes the congress 
with power to provide a remedy. This abrogation and denial of 
rights, for which the states alone were or could be responsible, 
was the great seminal and fundamental wrong which was intended 
to be remedied. And the remedy to be provided must necessarily 
be predicated upon that wrong. It must assume that in the cases 
provided for, the evil or wrong actually committed rests upon some 
state law or state authority for its excuse and perpetration. 

Of course, these remarks do not apply to those cases in which 
congress is clothed with direct and plenary powers of legislation 
over the whole subject, accompanied with an express or implied 
denial of such power to the states, as in the regulation of com¬ 
merce with foreign nations, among the several states, and with 
the Indian tribes, the coining of money, the establishment of post- 
offices and post-roads, the declaring of war, etc. In these cases 
congress has power to pass laws for regulating the subjects speci¬ 
fied, in every detail, and the conduct and transactions of individ¬ 
uals in respect thereof. But where a subject is not submitted to 
the general legislative power of congress, but is only submitted 
thereto for the purpose of rendering effective some prohibition 
against particular state legislation or state action in reference to 
that subject, the power given is limited by its object, and any leg¬ 
islation by congress in the matter must necessarily be corrective 
in its character, adapted to counteract and redress the operation 
of such prohibited state laws or proceedings of state officers. 

If the principles of interpretation which we have laid down are 
correct, as we deem them to be,—and they are in accord with the 
principles laid down in the cases before referred to, as well as in 
the recent case of U. S. v. Harris [106 U. S. 629, 1 Sup. Ct. 601, 
27 L. Kd. 290],—it is clear that the law in question cannot be sus¬ 
tained by any grant of legislative power made to congress by the 
fourteenth amendment. That amendment prohibits the states 
from denying to any person the equal protection of the laws, and 
declares that congress shall have power to enforce, by appropriate 
legislation, the provisions of the amendment. The law in question, 
without any reference to adverse state legislation on the subject. 


380 


CONSTITUTIONAL PROTECTION OP CIVIL RIGHTS 


declares that all persons shall be entitled to equal accommodations 
and privileges of inns, public conveyances, and places of public 
amusement, and imposes a penalty upon any individual 'who shall 
deny to any citizen such equal accommodations and privileges. 
This is not corrective legislation; it is primary and direct; it takes 
immediate and absolute possession of the subject of the right of 
admission to inns, public conveyances, and places of amusement. 
It supersedes and displaces state legislation on the same subject^ 
or only allows it permissive force. It ignores such legislation, and 
assumes that the matter is one that belongs to the domain of na¬ 
tional regulation. Whether it would not have been a more effective 
protection of the rights of citizens to have clothed congress with 
plenary power over the whole subject, is not now the question. 
What we have to decide is, whether such plenary power has been 
conferred upon congress by the fourteenth amendment, and, in 
our judgment, it has not. ^ ^ ^ [Portions of the opinion be¬ 

low this point, dealing with the thirteenth amendment, are omit¬ 
ted.] 

We must not forget that the province and scope of the thir¬ 
teenth and fourteenth amendments are different: the former sim¬ 
ply abolished slavery: the latter prohibited the states from abridg¬ 
ing the privileges or immunities of citizens of the United States,, 
from depriving them of life, liberty, or property without due pro¬ 
cess of law, and from denying to any the equal protection of the 
laws. The amendments are different, and the powers of congress 
under them are different. What congress has power to do under 
one, it may not have power to do under the other. Under the 
thirteenth amendment, it has only to do with slavery and its inci¬ 
dents. Under the fourteenth amendment, it has power to counter¬ 
act and render nugatory all state laws and proceedings which have 
the effect to abridge any of the privileges or immunities of citi¬ 
zens of the United States; or to deprive them of life, liberty, or 
property without due process of law, or to deny to any of them 
the equal protection of the laws. Under the thirteenth amendment 
the legislation, so far as necessary or proper to eradicate all forms 
and incidents of slavery and involuntary servitude, may be direct 
and primary, operating upon the acts of individuals, whether 
sanctioned by state legislation or not; under the fourteenth, as 
we have already shown, it must necessarily be, and can only be^ 
corrective in its character, addressed to counteract and afford re¬ 
lief against state regulations or proceedings. ^ * 

Innkeepers and public carriers, by the laws of all the states, sO' 
far as we are aware, are bound, to the extent of their facilities, 
to furnish proper accommodation to all unobjectionable persons 
who in good faith apply for them. If the laws themselves make 
any unjust discrimination, amenable to the prohibitions of the 


EQUAL PROTECTION OF THE LAWS 


381 


fourteenth amendment, congress has full power to afford a rem¬ 
edy under that amendment and in accordance with it. 

When a man has emerged from slavery, and by the aid of benef¬ 
icent legislation has shaken off the inseparable concomitants of 
that state, there must be some stage in the progress of his eleva¬ 
tion when he takes the rank of a mere citizen, and ceases to be the 
special favorite of the laws, and when his rights as a citizen, or a 
man, are to be protected in the ordinary modes by which other 
men’s rights are protected. * * * 

On the whole, we are of opinion that no countenance of author¬ 
ity for the passage of the law in question can be found in either the 
thirteenth or fourteenth amendment of the Constitution; and no 
other ground of authority for its passage being suggested, it must 
necessarily be declared void, at least so far as its operation in the 
several states is concerned. 

Judgment accordingly. 

[Harean, J., gave a dissenting opinion.] 


BARRIER v. CONNOLLY (1885) 113 U. S. 27, 30-32, 5 Sup. 
Ct. 357, 28 L. Ed. 923, Mr. Justice Field (upholding an ordinance 
of San Francisco, the contested part of which appears in the quo¬ 
tation below) : 

‘‘That fourth section, so far as it is involved in the case before 
the police judge, was simply a prohibition to carry on the washing 
and ironing of clothes in public laundries and wash-houses, within 
certain prescribed limits of the city and county, from ten o’clock 
at night until six o’clock on the morning of the following day. 
The prohibition against labor on Sunday is not involved. The pro¬ 
vision is purely a police regulation within the competency of any 
municipality possessed of the ordinary powers belonging to such 
bodies. And it would be an extraordinary usurpation of the au¬ 
thority of a municipality, if a federal tribunal should undertake to 
supervise such regulations. It may be a necessary measure of pre¬ 
caution in a city composed largely of wooden buildings like San 
Francisco, that occupations in which fires are constantly required, 
should cease after certain hours at night until the following morn¬ 
ing; and of the necessity of such regulations the municipal bodies 
are the exclusive judges; at least any correction of their action in 
such matters can come only from state legislation or state tribu¬ 
nals. The same municipal authority which directs the cessation of 
labor must necessarily prescribe the limits within which it shall 
be enforced, as it does the limits in a city within which wooden 
buildings cannot be constructed. There is no invidious discrimina¬ 
tion against any one within the prescribed limits by such regu¬ 
lations. There is none in the regulation under consideration. The 



382 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

Specification of the limits within which the business cannot be car¬ 
ried on without the certificates of the health officer and board of 
fire wardens is merely a designation of the portion of the city in 
which the precautionary measures against fire and to secure proper 
drainage must be taken for the public health and safety. It is not 
legislation discriminating against any one. All persons engaged 
in the same business within it are treated alike; are subject to 
the same restrictions and are entitled to the same privileges under 
similar conditions. 

“The fourteenth amendment, in declaring that no state ‘shall 
deprive any person of life, liberty, or property, without due process 
of law, nor deny to any person within its jurisdiction the equal 
protection of the laws,’ undoubtedly intended not only that there 
should be no arbitrary deprivation of life or liberty, or arbitrary 
spoliation of property, but that equal protection and security 
should be given to all under like circumstances in the enjoyment 
of their personal and civil rights; that all persons should be equal¬ 
ly entitled to pursue their happiness and acquire and enjoy prop¬ 
erty; that they should have like access to the courts of the coun¬ 
try for the protection of their persons and property, the prevention 
and redress of wrongs, and the enforcement of contracts; that no 
impediment should be interposed to the pursuits of any one except 
as applied to the same pursuits by others under like circumstances; 
that no greater burdens should be laid upon one than are laid upon 
others in the same calling and condition, and that in the adminis¬ 
tration of criminal justice no different or higher punishment should 
be imposed upon one than such as is prescribed to all for like of¬ 
fences. But neither the amendment—broad and comprehensive 
as it is—nor any other amendment, was designed to interfere with 
the power of the state, sometimes termed its police power, to pre¬ 
scribe regulations to promote the health, peace, morals, education, 
and good order of the people, and to legislate so as to increase 
the industries of the state, develop its resources, and add to its 
wealth and prosperity. From the very necessities of society, legis¬ 
lation of a special character, having these objects in view, must 
often be had in certain districts, such as for draining marshes and 
irrigating arid plains. Special burdens are often necessary for 
general benefits—for supplying water, preventing fires, lighting 
districts, cleaning streets, opening parks, and many other objects. 
Regulations for these purposes may press with more or less weight 
upon one than upon another, but they are designed, not to impose 
unequal or unnecessary restrictions upon any one, but to pro¬ 
mote, with as little individual inconvenience as possible, the gen¬ 
eral good. Though in many respects, necessarily special in their 
character, they do not furnish just ground of complaint if they 
operate alike upon all persons and property under the same cir- 


EQUAL PROTECTION OF THE LAWS 


383 


cumstances and conditions. Class legislation, discriminating 
agtainst some and favoring others, is prohibited, but legislation 
which, in carrying out a public purpose, is limited in its applica¬ 
tion, if within the sphere of its operation it affects alike all persons 
similarly situated, is not within the amendment.” 


GULF, C. & S. F. RY. CO. v. ELLIS. 

(Supreme Court of United States, 1897. 165 U. S. 150, 17 Sup. Ct. 255, 41 L. 

Ed. 666.) 

[Error to the Supreme Court of Texas. A Texas statute provid¬ 
ed that when any person, having a valid claim not exceeding $50 
against a railway corporation for personal service or labor, or for 
damages or overcharges on freight, or for injuries to stock by 
trains, should present such claim to the company under oath, and 
such claim should remain unpaid more than 30 days thereafter, the 
claimant might sue; and if he finally obtained judgment for the full 
amount of said claim he should be entitled in addition to an attor¬ 
ney fee of not over $10. Ellis, after complying with this statute, 
obtained judgment against the defendant company for $50 for a 
colt killed by it, and for a $10 attorney fee. The judgment for the 
attorney fee was appealed by defendant through two intermediate 
appellate courts to the state Supreme Court and was there af¬ 
firmed.] 

Mr. Justice BrUwejr. The single question in this case is the con¬ 
stitutionality of the act allowing attorney fees. The contention is 
that it operates to deprive the railroad companies of property with¬ 
out due process of law, and denies to them the equal protection of 
the law, in that it singles them out of all citizens and corporations, 
and requires them to pay in certain cases attorney fees to the par¬ 
ties successfully suing them, while it gives to them no like or cor¬ 
responding benefit. Only against railroad companies is such exac¬ 
tion made, and only in certain cases. * ^ * 

While good faith and a knowledge of existing conditions on the 
part of a legislature is to be presumed, yet to carry that presump¬ 
tion to the extent of always holding that there must be some un¬ 
disclosed and unknown reason for subjecting certain individuals or 
corporations to hostile and discriminating legislation is to make 
the protecting clauses of the fourteenth amendment a mere rope of 
sand, in no manner restraining state action. * * ^ 

But it is said that it is not within the scope of the fourteenth 
amendment to withhold from states the power of classification, and 
that, if the law deals alike with all of a certain class, it is not ob¬ 
noxious to the charge of a denial of equal protection. While, as a 
general proposition, this is undeniably true, ’i' * * yet it is 



384 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

equally true that such classification cannot be made arbitrarily. 
The state may not say that all white men shall be subjected to the 
payment of the attorney’s fees of parties successfully suing them, 
and all black men not. It may not say that all men beyond a cer¬ 
tain age shall be alone thus subjected, or all men possessed of a 
certain wealth. These are distinctions which do not furnish any 
proper basis for the attempted classification. That must always 
rest upon some difference which bears a reasonable and just rela¬ 
tion to the act in respect to which the classification is proposed, 
and can never be made arbitrarily, and without any such basis. 

As well said by Black, J., in State v. Loomis, 115 Mo. 307, 314, 22 
S‘. W. 350, 351, 21 L. R. A. 789, in which a statute making it a mis¬ 
demeanor for any corporation engaged in manufacturing or mining 
to issue in payment of the wages of its employes any order, check, 
etc., payable otherwise than in lawful money of the United States, 
unless negotiable and redeemable at its face value in cash or in 
goods and supplies at the option of the holder at the store or other 
place of business of the corporation, was held class legislation and 
void: “Classification for legislative purposes must have some rea¬ 
sonable basis upon which to stand. It must be evident that differ¬ 
ences which would serve for a classification for some purposes fur¬ 
nish no reason whatever for a classification for legislative purposes. 
The differences which will support class legislation must be such 
as, in the nature of things, furnish a reasonable basis for separate 
laws and regulations. Thus the legislature may fix the age at 
which persons shall be deemed competent to contract for them¬ 
selves, but no one will claim that competency to contract can be 
made to depend upon statute or color of the hair. Such a classi¬ 
fication for such a purpose would be arbitrary, and a piece of legis¬ 
lative despotism, and therefore not the law of the land.” * * ^ 

In Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 
533, 33 L. Ed. 892, the question was presented as to the power of 
the state to classify for purposes of taxation, and while it was con¬ 
ceded that a large discretion in these respects was vested in the 
various legislatures, the fact of a limit to such discretion was rec¬ 
ognized, the court, by Mr. Justice Bradley, saying, on page 237, 134 
U. S., and page 535, 10 Sup. Ct. (33 L. Ed. 892): “All such regu¬ 
lations, and those of like character, so long as they proceed within 
reasonable limits and general usage, are within the discretion of 
the state legislature or the people of the state in framing their con¬ 
stitution. But clear and hostile discriminations against particular 
persons and classes, especially such as are of an unusual character, 
unknown to the practice of our governments, might be obnoxious 
to the constitutional prohibition.” 

It is, of course, proper that every debtor should pay his debts, 
and there might be no impropriety in giving to every successful 
suitor attorney’s fees. Such a provision would bear a reasonable 


EQUAL PROTECTION OF THE LAWS 


385 


relation to the delinquency of the debtor, and would certainly cre¬ 
ate no inequality of right or protection. But before a distinction 
can be made between debtors, and one be punished for a failure to 
pay his debts, while another is permitted to become in like manner 
delinquent without any punishment, there must be some difference 
in the obligation to pay, some reason why the duty of payment is 
more imperative in the one instance than in the other. 

If it be said that this penalty is cast only upon corporations, that 
to them special privileges are granted, and therefore upon them 
special burdens may be imposed, it is a sufficient answer to say 
that the penalty is not imposed upon all corporations. The bur¬ 
den does not go with the privilege. Only railroads of all corpora¬ 
tions are selected to bear this penalty. The rule of equality is 
ignored. 

It may be said that certain corporations are chartered for charita¬ 
ble, educational, or religious purposes, and abundant reason for not 
visiting them with a penalty for the nonpayment of debts is found 
in the fact that their chartered privileges are not given for pecun¬ 
iary profit. But the penalty is not imposed upon all business cor¬ 
porations, all chartered for the purpose of private gain. The bank¬ 
ing corporations, the manufacturing corporations, and others like 
them, are exempt. Further, the penalty is imposed, not upon all 
corporations charged with the quasi public duty of transportation, 
but only upon those charged with a particular form of that duty. 
So the classification is not based on any idea of special privileges 
by way of incorporation, nor of special privileges given thereby for 
purposes of private gain, nor even of such privileges granted for 
the discharge of one general class of public duties. 

But, if the classification is not based upon the idea of special 
privileges, can it be sustained upon the basis of the business in 
which the corporations to be punished are engaged? That such 
corporations may be classified for some purposes is unquestioned.- 
The business in which they are engaged is of a peculiarly danger¬ 
ous nature, and the legislature, in the exercise of its police powers, 
may justly require many things to be done by them in order to se¬ 
cure life and property. Fencing of railroad tracks, use of safety 
couplers, and a multitude of other things easily suggest themselves. 
And any classification for the imposition of such special duties— 
duties arising out of the peculiar business in which they are en¬ 
gaged—is a just classification, and not one within the prohibition 
of the fourteenth amendment. Thus it is frequently required that 
they fence their tracks, and as a penalty for a failure to fence 
double damages in case of loss are inflicted. Railway Co. v. 
Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463. But this and 
all kindred cases proceed upon the theory of a special duty resting 
upon railroad corporations by reason of the business in which they 
Hall Cases Const.L.—25 


386 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

are engaged,—a duty not resting upon others; a duty which can 
be enforced by the legislature in any proper manner; and whether 
it enforces it by penalties in the way of fines coming to the state, 
or by double damages to a party injured, is immaterial. It is all 
done in the exercise of the police power of the state, and with a 
view to enforce just and reasonable police regulations. 

While this action is for stock killed, the recovery of attorneys' 
fees cannot be sustained upon the theory just suggested. There is 
no fence law in Texas. The legislature of the state has not deem¬ 
ed it necessary for the protection of life or property to require rail¬ 
roads to fence their tracks, and, as no duty is imposed, there can 
be no penalty for nonperformance. Indeed, the statute does not 
proceed upon any such theory; it is broader in its scope. Its ob¬ 
ject is to compel the payment of the several classes of debts named, 
and was so regarded by the supreme court of the state. 

But a mere statute to compel the payment of indebtedness does 
not come within the scope of police regulations. The hazardous 
business of railroading carries with it no special necessity for the 
prompt payment of debts. That is a duty resting upon all debtors, 
and while, in certain cases, there may be a peculiar obligation 
which may be enforced by penalties,. yet nothing of that kind 
springs from the mere work of railroad transportation. Statutes 
have been sustained giving special protection to the claims of 
laborers and mechanics, but no such idea underlies this legislation. 
It does not aim to protect the laborer or the mechanic alone, for 
its benefits are conferred upon every individual in the state, rich or 
poor, high or low, who has a claim of the character described. It 
is not a statute for the protection of particular classes of individ¬ 
uals supposed to need protection, but for the punishment of certain 
corporations on account of their delinquency. 

Neither can it be sustained as a proper means of enforcing the 
payment of small debts, and preventing any unnecessary litigation 
in respect to them, because it does not impose the penalty in all 
cases where the amount in controversy is within the limit named 
in the statute. Indeed, the statute arbitrarily singles out one class 
of debtors, and punishes it for a failure to perform certain duties,— 
duties which are equally obligatory upon all debtors; a punish¬ 
ment not visited by reason of the failure to comply with any prop¬ 
er police regulations, or for the protection of the laboring classes, 
or to prevent litigation about trifling matters, or in consequence 
of any special corporate privileges bestowed by the state. Unless 
the legislature may arbitrarily select one corporation or one class 
of corporations, one individual or one class of individuals, and 
visit a penalty upon them which is not imposed upon others guilty 
of like delinquency, this statute cannot be sustained. * * * 

Judgment reversed. 


EQUAL PROTECTION OP THE LAWS 


387 


Mr. Justice Gray [with whom concurred Fuller, C. J., and 
White, J.], dissenting: 

* The legislature of a state must be presumed to have 
acted frorh lawful motives, unless the contrary appears upon the 
face of the statute. If, for instance, the legislature of Texas was 
satisfied, from observation and experience, that railroad corpora¬ 
tions within the state were accustomed, beyond other corporations 
or persons, to unconscionably resist the payment of such petty 
claims, with the object of exhausting the patience and the means 
of the claimants, by prolonged litigation, and perhaps repeated ap¬ 
peals, railroad corporations alone might well be required, when 
ultimately defeated in a suit upon such a claim, to pay a moderate 
attorney’s fee, as a just, though often inadequate, contribution to 
the expenses to which they had put the plaintiff in establishing a 
rightful demand. Whether such a state of things as above sup¬ 
posed did in fact exist, and whether, for that or other reasons, 
sound policy required the allowance of such a fee to either party, 
or to the plaintiff only, were questions to be determined by the leg¬ 
islature, when dealing with the subject of costs, except in so far 
as it saw fit to commit the matter to the decision of the 
courts. ^ ^ 


LINDSLEY V. NATURAL CARBONIC GAS CO. 

(Supreme Court of United States, 1911. 220 U. S. 61, 31 Sup. Ct 337, 55 L. 

Ed. 369.) 

[Appeal from United States Circuit Court for the Southern Dis¬ 
trict of New York. A New York statute, as interpreted by the 
local courts, forbade the wasteful or unreasonable pumping from 
wells bored into the rock of a certain class of mineral waters hav¬ 
ing an excess of carbonic acid gas, for the purpose of extracting 
or vending such gas as a commodity separate from the water in 
which it occurred, provided that said mineral water was drawn 
from a source of supply common to other surface owners and that 
such pumping was injurious to such other owners. Plaintiff com¬ 
pany was engaged at Saratoga Springs, N.<Y., in the occupation 
thus forbidden, and sought an injunction in the Circuit Court 
against the enforcement of the statute. Upon demurrer plaintiff’s 
bill was dismissed, and plaintiff appealed.] 

Mr. Justice Van Devanter. ^ * Because the statute is di¬ 

rected against pumping from wells bored or drilled into the rock, 
but not against pumping from wells not penetrating the rock, and 
because it is directed against pumping for the purpose of collect¬ 
ing the gas and vending it apart from the waters, but not against 
pumping for other purposes, the contention is made that it is ar¬ 
bitrary in its classification, and consequently denies the equal pro¬ 
tection of the laws to those whom it affects. 



388 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

The rules by which this contention must be tested, as is shown 
by repeated decisions of this court, are these: 1. The equal-pro¬ 

tection clause of the fourteenth amendment does not take from the 
state the power to classify in the adoption of police laws, but ad¬ 
mits of the exercise of a wide scope of discretion in that regard, 
and avoids what is done only when it is without any reasonable 
basis, and therefore is purely arbitrary. 2. A classification having 
some reasonable basis does not offend against that clause merely 
because it is not made with mathematical nicety, or because in 
practice it results in some inequality. 3. When the classification in 
such a law is called in question, if any state of facts reasonably can 
be conceived that would sustain it, the existence of that state of 
facts at the time the law was enacted must be assumed. 4. One 
who assails the classification in such a law must carry the burden 
of showing that it does not rest upon any reasonable basis, but is 
essentially arbitrary. Bachtel v. Wilson, 204 U. S. 36, 41, 27 Sup. 
Ct. 243, 51 L. Ed. 357, 359; Louisville & N. R. Co. v. Melton, 218 

U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921; Ozan Lumber Co. v. Un¬ 
ion County Nat. Bank, 207 U. S. 251, 256, 28 Sup. Ct. 89, 52 L. Ed. 
195, 197; Munn v. Illinois, 94 U. S. 113, 132, 24 L. Ed. 77, 86; 
Henderson Bridge Co. v. Henderson, 173 U. S. 592, 615, 19 Sup. Ct. 
553, 43 L. Ed. 823, 831. 

Unfortunately, the allegations of the bill shed but little light up¬ 
on the classification in question. They do not indicate that pump¬ 
ing from wells not penetrating the rock appreciably affects the 
common supply therein, or is calculated to result in injury to the 
rights of others, and neither do they indicate that such pumping 
as is done for purposes other than collecting and vending the gas 
apart from the waters is excessive or wasteful, or otherwise op¬ 
erates to impair the rights of others. In other words, for aught 
that appears in the bill, the classification may rest upon some sub¬ 
stantial difference between pumping from wells penetrating the 
rock and pumping from those not penetrating it, and between 
pumping for the purpose of collecting and vending the gas apart 
from the waters and pumping for other purposes, and this differ¬ 
ence may afford a reasonable basis for the classification. 

In thus criticising the bill, we do not mean that its allegations 
are alone to be considered, for due regard also must be had for 
what is within the range of common knowledge and what is other¬ 
wise plainly subject to judicial notice. Brown v. Piper, 91 U. S. 
37, 43, 23 L. Ed. 200, 202; Brown v. Spilman, 155 U. S. 665, 670, 
15 Sup. Ct. 245, 39 L. Ed. 304, 305; New Mexico ex rel. McLean 

V. Denver & R. G. R. Co., 203 U. S. 38, 51, 27 Sup. Ct. 1, 51 L. Ed. 
78, 86; Illinois ex rel. McNichols v. Pease, 207 U. S. 100, 111, 28 
Sup. Ct. 58, 52 L. Ed. 121, 126. But we rest our criticism upon the 
fact that the bill is silent in respect of some matters which, al¬ 
though essential to the success of the present contention, are 


EQUAL PROTECTION OF THE LAWS 


389 


neither within the range of common knowledge nor otherwise 
plainly subject to judicial notice. So, applying the rule that one 
who- assails the classification in such a law must carry the burden 
of showing that it is arbitrary, we properly might dismiss the 
contention without saying more. But it may be well to mention 
other considerations which make for the same result. 

From statements made in the briefs of counsel and in oral argu¬ 
ment, we infer that wells not penetrating the rock reach such wa¬ 
ters only as escape naturally therefrom through breaks or fissures; 
and if this be so, it well may be doubted that pumping from such 
wells has anything like the same effect—if, indeed, it has any— 
upon the common supply or upon the rights of others, as does 
pumping from wells which take the waters from within the rock, 
where they exist under great hydrostatic pressure. 

As respects the discrimination made between pumping for the 
purpose of collecting and vending the gas apart from the waters, 
and pumping for other purposes, this is to be said: The greater 
demand for the gas alone, and the value which attaches to it in 
consequence of this demand, furnish a greater incentive for exer¬ 
cising the common right excessively and wastefully when the 
pumping is for the purpose prescribed than when it is for other 
purposes; and this suggestion becomes stronger when it is re¬ 
flected that the proportion of gas in the commingled fluids as they 
exist in the rock is so small that to obtain a given quantity of gas 
involves the taking of an enormously greater quantity of water, 
and to satisfy appreciably the demand for the gas alone involves 
a great waste of the water from which it is collected. Thus, it well 
may be that in actual practice the pumping is not excessive or 
wasteful save when it is done for the purpose prescribed. 

These considerations point with more or less persuasive force to 
a substantial difference, in point of harmful results, between 
pumping from wells penetrating the rock, and pumping from those 
not penetrating it, and between pumping for the purpose of col¬ 
lecting and vending the gas apart from the waters, and pumping 
for other purposes. If there be such a difference, it justifies the 
classification, for plainly a police law may be confined to the occa¬ 
sion for its existence. As is said in Carroll v. Greenwich Ins. Co., 
199 U. S. 401, 411, 26 Sup. Ct. 66, 50 L. Ed. 246, 250: ‘Tf an evil 
is specially experienced in a particular branch of business, the Con¬ 
stitution embodies no prohibition of laws confined to the evil, or 
doctrinaire requirement that they should be couched in all-em¬ 
bracing terms.” * * 

Decree affirmed. 


390 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


STRAUDER v. WEST VIRGINIA. 

(Supreme Court of United States, 1880. 100 U. S. 303, 25 L. Ed. 664.) 

[Writ of error to the Supreme Court of West Virginia. Strauder 
was indicted for murder in West Virginia, was tried, convicted and 
sentenced; the judgment being affirmed by the state Supreme 
Court. At the time the laws of the state confined the right to 
serve upon grand and petit juries to white male citizens of the state 
over twenty-one years old. Strauder was a negro, and appropriate 
exceptions to his trial by such juries were made on his behalf and 
overruled.] 

Mr. Justice Strong. * * * this court, several errors have 

been assigned, and the controlling questions underlying them all 
are, first, whether, by the Constitution and laws of the United 
States, every citizen of the United States has a right to a trial of 
an indictment against him by a jury selected and impanelled with¬ 
out discrimination against his race or color, because of race or 
color. * ^ ♦ 

It is to be observed that the first of these questions is not wheth¬ 
er a colored man, when an indictment has been preferred against 
him, has a right to a grand or a petit jury composed in whole or in 
part of persons of his own race or color, but it is whether, in the 
composition or selection of jurors by whom he is to be indicted or 
tried, all persons of his race or color may be excluded by law, sole¬ 
ly because of their race or color, so that by no possibility can any 
colored man sit upon the jury. * * * 

[After quoting section 1 of the fourteenth amendment:] This is 
one of a series of constitutional provisions having a common pur¬ 
pose, namely, securing to a race recently emancipated, a race that 
through many generations had been held in slavery, all the civil 
rights that the superior race enjoy. The true spirit and meaning 
of the amendments, as we said in the Slaughter-House Cases, 16 
Wall. 36, 21 L. Ed. 394, cannot be understood without keeping in 
view the history of the times when they were adopted, and the gen¬ 
eral objects they plainly sought to accomplish. At the time when 
they were incorporated into the Constitution, it required little 
knowledge of human nature to anticipate that those who had long 
been regarded as an inferior and subject race would, when sudden¬ 
ly raised to the rank of citizenship, be looked upon with jealousy 
and positive dislike, and that state laws might be enacted or en¬ 
forced to perpetuate the distinctions that had before existed. Dis¬ 
criminations against them had been habitual. It was well known 
that in some states laws making such discriminations then existed, 
and others might well be expected. The colored race, as a race, 
was abject and ignorant, and in that condition was unfitted to com¬ 
mand the respect of those who had superior intelligence. Their 


EQUAL PROTECTION OF THE LAWS 


391 


training had left them mere children, and as such they needed the 
protection which a wise government extends to those who are un¬ 
able to protect themselves. They especially needed protection 
against unfriendly action in the states where they were resident. 
It was in view of these considerations the fourteenth amendment 
was framed and adopted. It was designed to assure to the colored 
race the enjoyment of all the civil rights that under the law are 
enjoyed by white persons, and to give to that race the protection of 
the general government, in that enjoyment, whenever it should be 
denied by the states. It not only gave citizenship and the privi¬ 
leges of citizenship to persons of color, but it denied to any state 
the power to withhold from them the equal protection of the laws, 
and authorized Congress to enforce its provisions by appropriate 
legislation. * * ^ 

If this is the spirit and meaning of the amendment, whether it 
means more or not, it is to be construed liberally, to carry out the 
purposes of its framers. It ordains that no state shall make or en¬ 
force any laws which shall abridge the privileges or immunities of 
citizens of the United States (evidently referring to the newly made 
citizens, who, being citizens of the United States, are declared to 
be also citizens of the state in which they reside). It ordains that 
no state shall deprive any person of life, liberty, or property, with¬ 
out due process of law, or deny to any person within its jurisdic¬ 
tion the equal protection of the laws. What is this but declaring 
that the law in the states shall be the same for the black as for the 
white; that all persons, whether colored or white, shall stand equal 
before the laws of the states, and, in regard to the colored race, for 
whose protection the amendment was primarily designed, that no 
discrimination shall be made against them by law because of their 
color? The words of the amendment, it is true, are prohibitory, 
but they contain a necessary implication of a positive immunity, or 
right, most valuable to the colored race,—the right to exemption 
from unfriendly legislation against them distinctively as colored,— 
exemption from legal discriminations, implying inferiority in civil 
society, lessening the security of their enjoyment of the rights 
which others enjoy, and discriminations which are steps towards 
reducing them to the condition of a subject race. 

That the West Virginia statute respecting juries—the statute 
that controlled the selection of the grand and petit jury in the case 
of the plaintiff in error—is such a discrimination ought not to be 
doubted. Nor would it be if the persons excluded by it were white 
men. If in those states where the colored people constitute a ma¬ 
jority of the entire population a law should be enacted excluding 
all white men from jury service, thus denying to them the privi¬ 
lege of participating equally with the blacks in the administration 
of justice, we apprehend no one would be heard to claim that it 
would not be a denial to white men of the equal protection of the 


392 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

laws. Nor if a law should be passed excluding all naturalized 
Celtic Irishmen, would there be any doubt of its inconsistency with 
the spirit of the amendment. The very fact that colored people 
are singled out and expressly denied by a statute all right to par¬ 
ticipate in the administration of the law, as jurors, because of their 
color, though they are citizens, and may be in other respects fully 
qualified, is practically a brand upon them, affixed by the law, an 
assertion of their inferiority, and a stimulant to that race prejudice 
which is an impediment to securing to individuals of the race that 
equal justice which the law aims to secure to all others. 

The right to a trial by jury is guaranteed to every citizen of 
West Virginia by the Constitution of that state, and the constitu¬ 
tion of juries is a very essential part of the protection such a mode 
of trial is intended to secure. The very idea of a jury is a body of 
men composed of the peers or equals of the person whose rights 
it is selected or summoned to determine; that is, of his neighbors, 
fellows, associates, persons having the same legal status in society 
as that which he holds. Blackstone, in his Commentaries, says, 
“The right of trial by jury, or the country, is a trial by the peers 
of every Englishman, and is the grand bulwark of his liberties, and 
is secured to him by the Great Charter.” It is also guarded by 
statutory, enactments intended to make impossible what Mr. Ben- 
tham called “packing juries.” It is well known that prejudices oft¬ 
en exist against particular classes in the community, which sway 
the judgment of jurors, and which, therefore, operate in some cases 
to deny to persons of those classes the full enjoyment of that pro¬ 
tection which others enjoy. Prejudice in a local community is held 
to be a reason for a change of venue. The framers of the constitu¬ 
tional amendment must have known full well the existence of such 
prejudice and its likelihood to continue against the manumitted 
slaves and their race, and that knowledge was doubtless a motive 
that led to the amendment. By their manumission and citizenship 
the colored race became entitled to the equal protection of the 
laws of the states in which they resided; and the apprehension 
that through prejudice they might be denied that equal protection, 
that is, that there might be discrimination against them, was the 
inducement to bestow upon the national government the power to 
enforce the provision that no state shall deny to them the equal 
protection of the laws. Without the apprehended existence of 
prejudice that portion of the amendment would have been unneces¬ 
sary, and it might have been left to the states to extend equality of 
protection, hs * * 

We do not say that within the limits from which it is not exclud¬ 
ed by the amendment, a state may not prescribe the qualifications 
of its jurors, and in so doing make discriminations. It may con¬ 
fine the selection to males, to freeholders, to citizens, to persons 
within certain ages, or to persons having educational qualifications. 


EQUAL PROTECTION OF THE LAWS 


393 


We do not believe the fourteenth amendment was ever intended to 
prohibit this. Looking at its history, it is clear it had no such pur¬ 
pose. Its aim was against discrimination because of race or color. 
As we have said more than once, its design was to protect an 
emancipated race, and to strike down all possible legal discrimina¬ 
tions against those who belong to it. To quote further from 16 
Wall., supra: “In giving construction to any of these articles 
[amendments], it is necessary to keep the main purpose steadily 
in view.” “It is so clearly a provision for that race and that emer¬ 
gency, that a strong case would be necessary for its application to 
any other.” We are not now called upon to affirm or deny that it 
had other purposes. 

The fourteenth amendment makes no attempt to enumerate the 
rights it designed to protect. It speaks in general terms, and 
those are as comprehensive as possible. Its language is prohibi¬ 
tory; but every prohibition implies the existence of rights and 
immunities, prominent among which is an immunity from inequal¬ 
ity of legal protection, either for life, liberty, or property. Any 
state action that denies this immunity to a colored man is in con¬ 
flict with the Constitution. * * ♦ 

Judgment reversed. 

[Fie;ld, J., dissented, and Clifford, J., concurred with him.] 


PLESSY V. FERGUSON. 

(Supreme Court of United States, 1896. 163 U. S. 537, 16 Sup. Ct 1138, 41 L. 

Ed. 256.) 

[Error to the Supreme Court of Louisiana. A Louisiana statute 
required railway companies to provide equal, but separate, accom¬ 
modations for white and colored passengers, and made it a misde¬ 
meanor for any passenger to insist upon going into a coach reserved 
for persons of the other race. Plessy, a person of one-eighth Afri¬ 
can blood, was prosecuted for a violation of this statute before 
Ferguson, judge of the criminal court in the parish of Orleans. 
Plessy petitioned the state Supreme Court for writs of prohibition 
and certiorari to enjoin said judge from punishing him under said 
statute. From a denial of this petition this writ of error was 
taken.] 

Mr. Justice Brown. * ♦ * The object of the [fourteenth] 

amendment was undoubtedly to enforce the absolute equality of 
the two races before the law, but, in the nature of things, it could 
not have been intended to abolish distinctions based upon color, or 
to enforce social, as distinguished from political, equality, or a com¬ 
mingling of the two races upon terms unsatisfactory to either. 
Laws permitting, and even requiring, their separation, in places 
where they are liable to be brought into contact, do not necessarily 



394 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

imply the inferiority of either race to the other, and have been gen¬ 
erally, if not universally, recognized as within the competency of 
the state legislatures in the exercise of their police power. The 
most common instance of this is connected with the establishment 
of separate schools for white and colored children, which has been 
held to be a valid exercise of the legislative power even by courts 
of states where the political rights of the colored race have been 
longest and most earnestly enforced. 

One of the earliest of these cases is that of Roberts v. City of 
Boston, 5 Cush. (Mass.) 198, in which the supreme judicial court 
of Massachusetts held that the general school committee of Bos¬ 
ton had power to make provision for the instruction of colored 
children in separate schools established exclusively for them, and 
to prohibit their attendance upon the other schools. * * * 

Similar laws have been enacted by Congress under its general pow¬ 
er of legislation over the District of Columbia (sections 281-283, 
310, 319, Rev. St. D. C.), as well as by the legislatures of many 
of the states, and have been generally, if not uniformly, sustained 
by the courts. State v. McCann, 21 Ohio St. 210; Lehew v. Brum- 
mell, 103 Mo. 546, 15 S. W. 765, 11 L. R. A. 828, 23 Am. St. Rep. 
895; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City 
Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v. Gallagher, 
93 N. Y. 438, 45 Am. Rep. 232; Cory v. Carter, 48 Ind. 337, 17 Am. 
Rep. 738; Dawson v. Lee, 83 Ky. 49. 

Laws forbidding the intermarriage of the two races may be said 
in a technical sense to interfere with the freedom of contract, and 
yet have been universally recognized as within the police power of 
the state. State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42. * * * 

In this connection, it is also suggested by the learned counsel 
for the plaintiff in error that the same argument that will justify 
the state legislature in requiring railways to provide separate ac¬ 
commodations for the two races will also authorize them to re¬ 
quire separate cars to be provided for people whose hair is of a 
certain color, or who are aliens, or who belong to certain national¬ 
ities, or to enact laws requiring colored people to walk upon one 
side of the street, and white people upon the other, or requiring 
white men’s houses to be painted white, and colored men’s black, 
or their vehicles or business signs to be of different colors, upon 
the theory that one side of the street is as good as the other, or 
that a house or vehicle of one color is as good as one of another 
color. The reply to all this is that every exercise of the police 
power must be reasonable, and extend only to such laws as are en¬ 
acted in good faith for the promotion of the public good, and not 
for the annoyance or oppression of a particular class. ^ ^ ^ 

So far, then, as a conflict with the fourteenth amendment is con¬ 
cerned, the case reduces itself to the question whether the statute 
of Louisiana is a reasonable regulation, and with respect to this 


EQUAL PROTECTION OF THE LAWS 


395 


there must necessarily be a large discretion on the part of the leg¬ 
islature. In determining the question of reasonableness, it is at 
liberty to act with reference to the established usages, customs, 
and traditions of the people, and with a view to the promotion of 
their comfort, and the preservation of the public peace and good 
order. ^ Gauged by this standard, we cannot say that a law which 
authorizes or even requires the separation of the two races in pub¬ 
lic conveyances is unreasonable, or more obnoxious to the four¬ 
teenth amendment than the acts of congress requiring separate 
schools for colored children in the District of Columbia, the con¬ 
stitutionality of which does not seem to have been questioned, or 
the corresponding acts of state legislatures. 

We consider the underlying fallacy of the plaintiff’s argument 
to consist in the assumption that the enforced separation of the 
two races stamps the colored race with a badge of inferiority. If 
this be so, it is not by reason of anything found in the act, but 
solely because the colored race chooses to put that construction 
upon it. * The argument also assumes that social preju¬ 

dices may be overcome by legislation, and that equal rights can¬ 
not be secured to the negro except by an enforced commingling of 
the two races. We cannot accept this proposition. If the two 
races are to meet upon terms of social equality, it must be the re¬ 
sult of natural affinities, a mutual appreciation of each other’s mer¬ 
its, and a voluntary consent of individuals. * * * Legislation 

is powerless to eradicate racial instincts, or to abolish distinctions 
based upon physical differences, and the attempt to do so can only 
result in accentuating the difficulties of the present situation. If 
the civil and political rights of both races be equal, one cannot be 
inferior to the other civilly or politically. If one race be inferior 
to the other socially, the Constitution of the United States cannot 
put them upon the same plane. * * * 

Judgment affirmed. ' 

[Harlan, J., gave a dissenting opinion. BrEwlR, J., did not sit.] 


MULLER v. OREGON. 

(Supreme Court of United States, 1908. 208 U. S. 412, 28 Sup. Ct. 324, 52 L. 
Ed. 551, 13 Ann. Cas. 957.) 

[Error to the Supreme Court of Oregon. An Oregon statute 
(Laws 1903, p. 148) forbade the employment of any female in any 
mechanical establishment, factory, or laundry in the state for more 
than ten hours during any one day. Muller was convicted and 
fined for violating this statute in the conduct of his laundry. This 
judgment of the circuit court of Multnomah county was affirmed 
by the state Supreme Court.] 



396 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


Mr. Justice Brewer. * * ^ The single question is the con¬ 

stitutionality of the statute under which the defendant was con¬ 
victed, so far as it affects the work of a female in a laundry. * * 

It is the law of Oregon that women, whether married or single, 
have equal contractual and personal rights with men. * * * 

It thus appears that, putting to one side the elective franchise, 
in the matter of personal and contractual rights they stand on the 
same plane as the other sex. Their rights in these respects can no 
more be infringed than the equal rights of their brothers. We held 
in Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 
937, 3 Ann. Cas. 1133, that a law providing that no laborer shall 
be required or permitted to work in a bakery more than sixty 
hours in a week or ten hours in a day was not as to men a legit¬ 
imate exercise of the police power of the state, but an unreason¬ 
able, unnecessary, and arbitrary interference with the right and 
liberty of the individual to contract in relation to his labor, and as 
such was in conflict with, and void under, the federal Constitution. 
That decision is invoked by plaintiff in error as decisive of the 
question before us. But this assumes that the difference between 
the sexes does not justify a different rule respecting a restriction 
of the hours of labor. 

In patent cases counsel are apt to open the argument with a dis¬ 
cussion of the state of the art. It may not be amiss, in the pres¬ 
ent case, before examining the constitutional question, to notice 
the course of legislation, as well as expressions of opinion from 
other than judicial sources. In the brief filed by Mr. Louis D. 
Brandeis for the defendant in error is a very copious collection of 
all these matters, an epitome of which is found in the margin."^ 
While there have been but few decisions bearing directly upon 
the question, the following sustain the constitutionality of such 
legislation: Com. v. Hamilton Mfg. Co., 120 Mass. 383; Wenham 
V. State, 65 Neb. 394, 400, 406, 91 N. W. 421, 58 L. R. A. 825; State 
V. Buchanan, 29 Wash. 602, 70 Pac. 52, 59 L. R. A. 342, 92 Am. St. 
Rep. 930; Com. v. Beatty, 15 Pa. Super. Ct. 5, 17. Against them 
is the case of Ritchie v. People, 155 Ill. 98, 40 N. E. 454, 29 L. R. 
A. 79, 46 Am. St. Rep. 315. 

The legislation and opinions referred to in the margin may not 
be, technically speaking, authorities, and in them is little or no dis¬ 
cussion of the constitutional question presented to us for deter¬ 
mination, yet they are significant of a widespread belief that wo¬ 
man’s physical structure, and the functions she performs in con¬ 
sequence thereof, justify special legislation restricting or qualify¬ 
ing the conditions under which she should be permitted to toil. 

7 Here are collected references to all American and European legislation 
restricting the hours of labor of women, and a summary of extracts from 
over 90 official reports to the effect that long hours of laty)r are dangerous to 
women. 


EQUAL PROTECTION OF THE LAWS 


397 


Constitutional questions, it is true, are not settled by even a con¬ 
sensus of present public opinion, for it is the peculiar value of a 
written constitution that it places in unchanging form limitations 
upon legislative action, and thus gives a permanence and stability 
to popular government which otherwise would be lacking. At 
the same time, when a question of fact is debated and debatable, 
and the extent to which a special constitutional limitation goes is 
affected by the truth in respect to that fact, a widespread and long- 
continued belief concerning it is worthy of consideration. We take 
judicial cognizance of all matters of general knowledge. ★ * * 

That woman’s physical structure and the performance of ma¬ 
ternal functions place her at a disadvantage in the struggle for 
subsistence is obvious. This is especially true when the burdens 
of motherhood are upon her. Even when they are not, by abun¬ 
dant testimony of the medical fraternity continuance for a long 
time on her feet at work, repeating this from day to day, tends to 
injurious effects upon the body, and, as healthy mothers are es¬ 
sential to vigorous offspring, the physical well-being of woman 
becomes an object of public interest and care in order to preserve 
the strength and vigor of the race. 

Still again, history discloses the fact that woman has always 
been dependent upon man. He established his control at the out¬ 
set by superior physical strength, and this control in various forms, 
with diminishing intensity, has continued to the present. As [a] 
minor, though not to the same extent, she has been looked upon in 
the courts as needing especial care that her rights may be pre¬ 
served. Education was long denied her, and while now the doors 
of the schoolroom are opened and her opportunities for acquiring 
knowledge are great, yet even with that and the consequent in¬ 
crease of capacity for business affairs it is still true that in the 
struggle for subsistence she is not an equal competitor with her 
brother. Though limitations upon personal and contractual rights 
may be removed by legislation, there is that in her disposition 
and habits of life which will operate against a full assertion of 
those rights. She will still be where 'Some legislation to protect 
her seems necessary to secure a real equality .of right. Doubtless 
there are individual exceptions, and there are many respects in 
which she has an advantage over him; but looking at it from the 
viewpoint of the effort to maintain an independent position in 
life, she is not upon an equality. 

Differentiated by these matters from the other sex, she is prop¬ 
erly placed in a class by herself, and legislation designed for her 
protection may be sustained, even when like legislation is not nec¬ 
essary for men, and could not be sustained. It is impossible to 
close one’s eyes to the fact that she still looks to her brother and 
depends upon him. Even though all restrictions on political, per¬ 
sonal, and contractual rights were taken away, and she stood, so 


398 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


far as statutes are concerned, upon an absolutely equal plane with 
him, it would still be true that she is so constituted that she will 
rest upon and look to him for protection; that her physical struc¬ 
ture and a proper discharge of her maternal functions—having in 
view not merely her own health, but the well-being of the race^— 
justify legislation to protect her from the greed as well as the pas¬ 
sion of man. The limitations which this statute places upon her 
contractual powers, upon her right to agree with her employer 
as to the time she ^.hall labor, are not imposed solely for her bene¬ 
fit, but also largely for the benefit of all. Many words cannot 
make this plainer. The two sexes differ in structure of body, in 
the functions to be performed by each, in the amount of physical 
strength, in the capacity for long continued labor, particularly 
when done standing, the influence of vigorous health upon the 
future well-being of the race, the self-reliance which enables one 
to assert full rights, and in the capacity to maintain the struggle 
for subsistence. This difference justifies a difference in legislation, 
and upholds that which is designed to compensate for some of the 
burdens which rest upon her. * * * 

For these reasons, and without questioning in any respect the 
decision in Lochner v. New York, we are of the opinion that it 
cannot be adjudged that the act in question is in conflict with the 
federal Constitution, so far as it respects the work of a female in 
a laundry, and the judgment of the Supreme Court of Oregon is 
affirmed. 


III. Due Process of Law • 


HURTADO v. CALIFORNIA. 

(Supreme Court of United States, 1884. 110 U. S. 516, 4 Sup. Ct 111 292 

28 L. Ed. 232.) 

[Error to the Supreme Court of California. The California Con¬ 
stitution of 1879 provided that offences theretofore prosecuted by 
indictment should be prosecuted by information after examination 
and commitment by a magistrate, or by indictment, as might be 
prescribed by law. Hurtado was found guilty of murder by a 
jury, after an information had been filed against him, and was 
sentenced to death. His objections to the proceeding by informa¬ 
tion were overruled by the California Supreme Court, and this 
writ of error was taken.] 

8 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 217-225. 




DUE PROCESS OF LAW 


39 <> 

Mr. Justice MaTThFws. * * * It is claimed on behalf of the 

prisoner that the conviction and sentence are void, on the ground 
that they are repugnant to that clause of the fourteenth article of 
amendment of the Constitution of the United States, which is in 
these words: “Nor shall any state deprive any person of life, lib¬ 
erty, or property without due process of law.” 

The proposition of law we are asked to affirm is that an indict¬ 
ment or presentment by a grand jury, as known to the common 
law of England, is essential to that “due process of law,” when 
applied to prosecutions for felonies, which is secured and guar¬ 
anteed by this provision of the Constitution of the United States, 
and which accordingly it is forbidden to the states respectively to 
dispense with in the administration of criminal law. * * * 

It is maintained on behalf of the plaintiff in error that the phrase 
“due process of law” is equivalent to “law of the land,” as found 
in the 29th chapter of Magna Charta; that by immemorial usage it 
has acquired a fixed, definite, and technical meaning; that it refers 
to and includes, not only the general principles of public liberty 
and private right, which lie at the foundation of all free govern¬ 
ment, but the very institutions which, venerable by time and cus¬ 
tom, have been tried by experience and found fit and necessary 
for the preservation of those principles, and which, having been 
the birthright and inheritance of every English subject, crossed 
the Atlantic with the colonists and were transplanted and estab¬ 
lished in the fundamental laws of the state; that, having been 
originally introduced into the Constitution of the United States as 
a limitation upon the powers of the government, brought into be¬ 
ing by that instrument, it has now been added as an additional 
security to the individual against oppression by the states them¬ 
selves; that one of these institutions is that of the grand jury, an 
indictment or presentment by which against the accused in cases 
of alleged felonies is an essential part of due process of law, in 
order that he may not be harassed or destroyed by prosecutions 
founded only upon private malice or popular fury. 

This view is certainly supported by' the authority of the great 
name of Chief Justice Shaw and of the coqrt in which he pre¬ 
sided, which, in Jones v. Robbins, 8 Gray (Mass.) 329, decided that 
the 12th article of the Bill of Rights of Massachusetts, a transcript 
of Magna Charta in this respect, made an indictment or present¬ 
ment of a grand jury essential to the validity of a conviction in 
cases of prosecutions for felonies. * * ’i' 

Mr. Reeve, in 2 History of Eng. Law, 43, translates the phrase, 
nisi per legale judicium parium suorum vel per legem terrse, “But 
by the judgment of his peers, or by some other legal process or 
proceeding adapted by the law to the nature of the case.” 

Chancellor Kent, 2 Com. 13, adopts this mode of construing the 
phrase. Quoting the language of Magna Charta, and referring to 


400 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

Lord Coke’s comment upon it, he says: “The better and larger 
definition of due process of law is that it means law in its regular 
course of administration through courts of justice.” 

This accords with what is said in Westervelt v. Gregg, 12 N. 
Y. 202, 212, 62 Am. Dec. 160, by Denio, J.: “The provision was 
designed to protect the citizen against all mere acts of power, 
whether flowing from the legislative or executive branches of the 
government.” 

The principal and true meaning of the phrase has never been 
more tersely or accurately stated than by Mr. Justice Johnson, in 
Bank of Columbia v. Okely, 4 Wheat. 235-244, 4 L. Ed. 559: “As 
to the words from Magna Charta, incorporated into the Constitu¬ 
tion of Maryland, after volumes spoken and written with a view 
to their exposition, the good sense of mankind has at last settled 
down to this: that they were intended to secure the individual 
from the arbitrary exercise of the powers of government, unre¬ 
strained by the established principles of private right and dis¬ 
tributive justice.” 

And the conclusion rightly deduced is, as stated by Mr. Cooley, 
Constitutional Limitations, 356: “The principles, then, upon which 
the process is based, are to determine whether it is ‘due process’ 
or not, and not any considerations of mere form. Administrative 
and remedial process may be changed from time to time, but only 
with due regard to the landmarks established for the protection of 
the citizen.” 

It is urged upon us, however, in argument, that the claim made 
in behalf of the plaintiff in error is supported by the decision of 
this court in Den .ex dem. Murray v. Hoboken Land & Improve¬ 
ment Company, 18 How. 272, 15 L. Ed. 372. There, Mr. Justice 
Curtis, delivering the opinion of the court, after showing (page 
276) that due process of law must mean something more than the 
actual existing law of the land, for otherwise it would be no re¬ 
straint upon legislative* power, proceeds as follows: “To what 
principle, then, are we to resort to ascertain whether this process, 
enacted by Congress, is due process? To this the answer must be 
twofold. We must examine the Constitution itself to see whether 
this process be in conflict with any of its provisions. If not found 
to be so, we must look to those settled usages and modes of pro¬ 
ceeding existing in the common and statute law of England before 
the emigration of our ancestors, and which are shown not to have 
been unsuited to their civil and political condition by having been 
acted on by them after the settlement of this country.” 

TLis, it is argued, furnishes an indispensable test of what consti¬ 
tutes “due process of law”; that any proceeding otherwise au¬ 
thorized by law, which is not thus sanctioned by usage, or which 
supersedes and displaces one that is, cannot be regarded as due 
process of law. 


DUE PROCESS OP LAW 


401 


But this inference is unwarranted. The real syllabus of the 
passage quoted is, that a process of law, which is not otherwise 
forbidden, must be taken to be due process of law, if it can show 
the sanction of settled usage both in England and in this country; 
but it by no means follows that nothing else can be due process of 
law. The point in the case cited arose in reference to a summary 
proceeding, questioned on that account, as not due process of law. 
The answer was: however exceptional it may be, as tested by 
definitions and principles of ordinary procedure, nevertheless, this, 
in substance, has been immemorially the actual law of the land, 
and, therefore, is due process of law. But to hold that such a 
characteristic is essential to due process of law, would be to deny 
every quality of the law but its age, and to render it incapable of 
progress or improvement. It would be to stamp upon our juris¬ 
prudence the unchangeableness attributed to the laws of the Medes 
and Persians. 

This would be all the more singular and surprising, in this quick 
and active age, when we consider that, owing to the progressive 
development of legal ideas and institutions in England, the words 
of Magna Charta stood for very different things at the time of the 
separation of the American colonies from what they represented 
originally. For at first the words nisi per legale judicium parium 
had no reference to a jury; they applied only to the pares regni, 
who were the constitutional judges in the court of exchequer and 
coram rege. Bac. Abr. “Juries,” (7th Ed. Lend.) note; 2 Reeve, 
Hist. Eng. Law, 41. And as to the grand jury itself, we learn of 
its constitution and functions from the assize of Clarendon, (A. D. 
1164,) and that of Northampton, (A. D. 1176,) Stubbs, Chart. 
143-150. * * * “The system thus established,” says Mr. Justice 

Stephens, (1 Hist. Crim. Law Eng. 252,) “is simple. The body of 
the country are the accusers. Their accusation is practically equiv¬ 
alent to a conviction, subject to the chance of a favorable termina¬ 
tion of the ordeal by water. If the ordeal fails, the accused, person 
loses his foot and his hand. If it succeeds, he is, nevertheless, to 
be banished. Accusation, therefore, wa6 equivalent to banishment, 
at least.” When we add to this that the primitive grand jury 
heard no witnesses in support of the truth of the charges to be 
preferred, but presented upon their own knowledge, or indicted 
upon common fame and general suspicion, we shall be ready to 
acknowledge that it is better not to go too far back into antiquity 
for the best securities for our “ancient liberties.” It is more con¬ 
sonant to the true philosophy of our historical legal institutions to 
say that the spirit of personal liberty and individual right, which 
they embodied, was preserved and developed by a progressive 
growth and wise adaptation to new circumstances and situations 
of the forms and processes found fit to give, from time to time, 
Hall Cases Const.L.— 26 


402 CONSTITUTIONAL PROTECTION OP CIVIL RIGHTS 

new expression and greater effect to* modern ideas of self-govern¬ 
ment. * * 

The Constitution of the United States was ordained, it is true, 
by descendants of Englishmen, who inherited the traditions of 
English law and history; but it was made for an undefined and 
expanding future, and for a people gathered, and to be gathered, 
from many nations and of many tongues; and while we take just 
pride in the principles and institutions of the common law, we are 
not to forget that in lands where other systems of jurisprudence 
prevail, the ideas and processes of civil justice are also not un¬ 
known. Due process of law, in spite of the absolutism of con¬ 
tinental governments, is not alien to that Code which survived the 
Roman empire as the foundation of modern civilization in Europe, 
and which has given us that fundamental maxim of distributive 
justice, suum cuique tribuere. There is nothing in Magna Charta, 
rightly construed as a broad charter of public right and law, which 
ought to exclude the best ideas of all systems and of every age; 
and as it was the characteristic principle of the common law to 
draw its inspiration from every fountain of justice, we are not 
to assume that the sources of its supply have been exhausted. On 
the contrary, we should expect that the new and various experi¬ 
ences of our own situation and system will mould and shape it 
into new and not less useful forms. 

The concessions of Magna Charta were wrung from the king as 
guarantees against the oppressions and usurpations of his preroga¬ 
tive. It did not enter into the minds of the barons to provide 
security against their own body or in favor of the Commons by 
limiting the power of Parliament; so that bills of attainder, ex post 
facto laws, laws declaring forfeitures of estates, and other arbitrary 
acts of legislation which occur so frequently in English history, 
were never regarded as inconsistent with the law of the land; for 
notwithstanding what was attributed to Lord Coke in Bonham’s 
Case, 8 Rep. 115, 118a, the omnipotence of Parliament over the 
common law was absolute, even against common right and reason. 
The actual and practical security for English liberty against legis¬ 
lative tyranny was the power of a free public opinion represented 
by the Commons. 

In this country written constitutions were deemed essential to 
protect the rights and liberties of the people against the encroach¬ 
ments of power delegated to their governments, and the provisions 
of Magna Charta were incorporated into bills of rights. They 
were limitations upon all the powers of government, legislative as 
well as executive and judicial. 

It necessarily happened, therefore, that as these broad and gen¬ 
eral maxims of liberty and justice held in our system a different 
place and performed a different function from their position and 
office in English constitutional history and law, they would re- 


DUE PROCESS OF LAW 


403 


ceive and justify a corresponding and more comprehensive inter¬ 
pretation. Applied in England only as guards against executive 
usurpation and tyranny, here they have become bulwarks also 
against arbitrary legislation; but, in that application, as it would 
be incongruous to measure and restrict them by the ancient cus¬ 
tomary English law, they must be held to guarantee, not particular 
forms of procedure, but the very substance of individual rights to 
life, liberty, and property. 

Restraints that could be fastened upon executive authority with 
precision and detail, might prove obstructive and injurious when 
imposed on the just and necessary discretion of legislative power; 
and, while in every instance, laws that violated express and spe¬ 
cific injunctions and prohibitions might, without embarrassment, 
be judicially declared to be void, yet any general principle or 
maxim founded on the essential nature of law, as a just and rea¬ 
sonable expression of the public will, and of government as in¬ 
stituted by popular consent and for the general good, can only be 
applied to cases coming clearly within the scope of its spirit and 
purpose, and not to legislative provisions merely establishing 
forms and modes of attainment. Such regulations, to adopt a 
sentence of Burke's, “may alter the mode and application, but have 
no power over the substance of original justice." Tract on Popery 
Laws, 6 Burke’s Works, (Ed. Little ^ Brown) 323. 

Such is the often repeated doctrine of this court. In Munn v. 
Illinois, 94 U. S. 113-134, 24 L. Ed. 77, the Chief Justice, deliver¬ 
ing the opinion of the court, said: “A person has no property, no 
vested interest, in any rule of the common law. That is only one 
of the forms of municipal law, and is no more sacred than any 
other. Rights of property which have been created by the com¬ 
mon law cannot be taken away without due process; but the law 
itself, as a rule of conduct, may be changed at the will or even at 
the whim of the legislature, unless prevented by constitutional 
limitations. Indeed, the great office of statutes is to remedy de¬ 
fects’in the common law as they are developed, and to adapt it to 
the changes of time and circumstances." And in Walker v. Sau- 
vinet, 92 U. S. 90, 23 L. Ed. 678, the court sa'id: “A trial by jury 
in suits at common law pending in state courts is not, therefore, 
a privilege or immunity of national citizenship which the states 
are forbidden by the fourteenth amendment to abridge. A state 
cannot deprive a person of his property without due process of 
law; but this does not necessarily imply that all trials in the state 
courts affecting the property of persons must be by jury. This 
requirement of the Constitution is met if the trial is had according 
to the settled course of judicial proceedings. Due process of law 
is process according to the law of the land. This process in the 
states is regulated by the law of the state.” ♦ ♦ ♦ 


404 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

We are to construe this phrase in the fourteenth amendment by 
the usus loquendi of the Constitution itself. The same words are 
contained in the fifth amendment. That article makes specific and 
express provision for perpetuating the institution of the grand 
jury, so far as relates to prosecutions for the more aggravated 
crimes under the laws of the United States. It declares that “no 
person shall be held to answer for a capital or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, 
except in cases arising in the land or naval forces, or in the militia 
when in actual service in time of war or public danger; nor shall 
any person be subject for the same offense to be twice put in 
jeopardy of life or limb; nor shall he be compelled in any criminal 
case to be a witness against himself.^’ It then immediately adds: 
“nor be deprived of life, liberty, or property without due process of 
law.” According to a recognized canon of interpretation, especial¬ 
ly applicable to formal and solemn instruments of constitutional 
law, we are forbidden to assume, without clear reason to the con¬ 
trary, that any part of this most important amendment is super¬ 
fluous. The natural and obvious inference is that, in the sense of 
the constitution, “due process of law” was not meant or intended 
to include, ex vi termini, the institution and procedure of a grand 
jury in any case. The conclusion is equally irresistible, that when 
the same phrase was employed in the fourteenth amendment to re¬ 
strain the action of the states, it was used in the same sense and 
with no greater extent; and that if in the adoption of that amend¬ 
ment it had been part of its purpose to perpetuate the institution 
of the grand jury in all the states, it would have embodied, as did 
the fifth amendment, express declarations to that effect. Due 
process of law in the latter refers to that law of the land which 
derives its authority from the legislative powers conferred upon 
Congress by the Constitution of the United States, exercised within 
the limits therein prescribed, and interpreted according to the prin¬ 
ciples of the common law. In the fourteenth amendment, by 
parity of reason, it refers to that law of the land in each state 
which derives its authority from the inherent and reserved powers 
of the state, exerted within the limits of those fundamental prin¬ 
ciples of liberty and justice which lie at the base of all our civil 
and political institutions, and the greatest security for which re¬ 
sides in the right of the people to make their own laws, and alter 
them at their pleasure. “The fourteenth amendment,” as was 
said by Mr. Justice Bradley in Missouri v. Lewis, 101 U. S. 22-31, 
25 L. Ed. 989, “does not profess to secure to all persons in the 
United States the benefit of the same laws and the same remedies. 
Great diversities in these respects may exist in two states separat¬ 
ed only by an imaginary line. On one side of this line there may 
be a right of trial by jury, and on the other side no such right. 
Each state prescribes its own modes of judicial proceeding.” 


DUE PROCESS OP LAW 


405 


But it is not to be supposed that these legislative powers are 
absolute and despotic, and that the amendment prescribing due 
process of law is too vague and indefinite to operate as a practical 
restraint. It is not every act, legislative in form, that is law. Law 
is something more than mere will exerted as an act of power. It 
must be not a special rule for a particular person or a particular 
case, but, in the language of Mr. Webster, in his familiar definition, 
“the general law, a law which hears before it condemns, which 
proceeds upon inquiry, and renders judgment only after trial,” so 
“that every citizen shall hold his life, liberty, property, and im¬ 
munities under the protection of the general rules which govern 
society,” and thus excluding, as not due process of law, acts of 
attainder, bills of pains and penalties, acts of confiscation, acts re¬ 
versing judgments, and acts directly transferring one man’s estate 
to another, legislative judgments and decrees, and other similar 
special, partial, and arbitrary exertions of power under the forms 
of legislation. Arbitrary power, enforcing its edicts to the injury 
of the persons and property of its subjects, is not law, whether 
manifested as the decree of a personal monarch or of an imperson¬ 
al multitude. And the limitations imposed by our constitutional 
law upon the action of the governments, both state and national, 
are essential to the preservation of public and private rights, not¬ 
withstanding the representative character of our political institu¬ 
tions. The enforcement of these limitations by judicial process 
is the device of self-governing communities to protect the rights 
of individuals and minorities, as well against the power of num¬ 
bers, as against the violence of public agents transcending the lim¬ 
its of lawful authority, even when acting in the name and wield¬ 
ing the force of the government. ^ ^ * 

It follows that any legal proceeding enforced by public author¬ 
ity, whether sanctioned by age and custom, or newly devised in 
the discretion of the legislative power, in furtherance of the gen¬ 
eral public good, which regards and preserves these principles of 
liberty and justice, must be held to be due process of law. * * * 
Tried by these principles, we are unable to say that the substitu¬ 
tion for a presentment or indictment by a grand jury of the pro¬ 
ceeding by information, after examination and commitment by a 
magistrate, certifying to the probable guilt of the defendant, with 
the right on his part to the aid of counsel, and to the cross-exami¬ 
nation of the witnesses produced for the prosecution, is not due 
process of law. It is, as we have seen, an ancient proceeding at 
common law, which might include every case of an offence of less 
grade than a felony, except misprision of treason; and in every 
circumstance of its administration, as authorized by the statute of 
California, it carefully considers and guards the substantial inter¬ 
est of the prisoner. It is merely a preliminary proceeding, and 
can result in no final judgment, except as the consequence of a reg- 


406 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

ular judicial trial, conducted precisely as in cases of indict¬ 
ments. ^ ^ * 

Judgment affirmed. 

[Harlan, J., gave a dissenting opinion.] 


HAGAR V. RECLAMATION DIST. NO. 108. 

(Supreme Court of United States, 1884. Ill U. S. 701, 4 Sup. Ct. 663, 28 L. 

Ed. 569.) 

[Appeal from the federal Circuit Court for California. A Califor¬ 
nia statute provided for the creation by county boards of super¬ 
visors of reclamation districts out of overflowed lands so situated 
as to be susceptible of one mode of reclamation. After the neces¬ 
sary expenses of reclamation had been estimated commissioners 
appointed by the supervisors were to assess upon each acre re¬ 
claimed or benefited an amount proportionate to the whole expense 
and to the benefits of the reclamation. Hagar’s land was included 
in such a district and he refused to pay his assessment. Suits 
were brought against him to enforce ’liens on his land for the 
assessment. These suits were removed to the federal Circuit 
Court, which held the liens valid and ordered the land sold to 
satisfy them.] 

Mr. Justice Field. * ^ ^ 'phe objections urged to the valid¬ 

ity of the assessment on federal grounds are substantially these: 
that the law under which the assessment was made and levied con¬ 
flicts with the clause of the fourteenth amendment of the Consti¬ 
tution declaring that no state shall deprive any person of life, 
liberty, or property without due process of law. * * * It is 

sufficient to observe here that by '‘due process” is meant one 
which, following the forms of law, is appropriate to the case, and 
just to the parties to be affected. It must be pursued in the ordi¬ 
nary mode prescribed by the law; it must be adapted to the end 
to be attained; and wherever it is necessary for the protection of 
the parties, it must give them an opportunity to be heard respect¬ 
ing the justice of the judgment sought. The clause in question 
means, therefore, that there can be no proceeding against life, 
liberty,’ or property which may result in the deprivation of either, 
without the observance of those general rules established in our 
system of jurisprudence for the security of private rights. Hurta¬ 
do V. California, 110 U. S. 516, 536, 4 Sup. Ct. Ill, 292, 28 L. 
Ed. 232. 

The appellant contends that this fundamental principle was vio¬ 
lated in the assessment of his property, inasmuch as it was made 
without notice to him, or without his being afforded any oppor¬ 
tunity to be heard respecting it; the law authorizing it containing 



DUE PROCESS OP LAW 


407 


no provision for such notice or hearing. His contention is that 
notice and opportunity to be heard are essential to render any 
proceeding due process of law which may lead to the deprivation 
of life, liberty, or property. Undoubtedly where life and liberty 
are involved, due process requires that there be a regular course 
of judicial proceedings, which imply that the party to be affected 
shall have notice and an opportunity to be heard; so, also, where 
title or possession of property is involved. But where the taking 
of property is in the enforcement of a tax, the proceeding is neces¬ 
sarily less formal, and whether notice to him is at all necessary 
may depend upon the character of the tax, and the manner in 
which its amount is determinable. The necessity of revenue for 
the support of the government does not admit of the delay at¬ 
tendant upon proceedings in a court of justice, and they are not 
required for the enforcement of taxes or assessments. As stated 
by Mr. Justice Bradley, in his concurring opinion in Davidson v. 
New Orleans, 96 U. S. 97, 24 U. Ed. 616; ‘Tn judging what is ‘due 
process of law’ respect must be had to the cause and object of the 
taking, whether under the taxing power, the power of eminent 
domain, or the power of assessment for local improvements, or 
some of these; and, if found to be suitable or admissible in the 
special case, it will be adjudged to be ‘due process of law,’ but if 
found to be arbitrary, oppressive, and unjust, it may be declared 
to be not ‘due process of law.’ ” 

The power of taxation possessed by the state may be exercised 
upon any subject within its jurisdiction, and to any extent not 
prohibited by the Constitution of the United States. As said by 
this court: “It may touch property in every shape, in its natural 
condition, in its manufactured form, and in its various transmuta¬ 
tions. And the amount of the taxation may be determined by the 
value of the property, or its use, or its capacity, or its productive¬ 
ness. It may touch business in the almost infinite forms in which 
it is conducted, in professions, in commerce, in manufactures, and 
in transportation. Unless restrained by provisions of the federal 
Constitution, the power of the state,, as to the mode, form, and 
extent of taxation, is unlimited where the subjects to which it 
applies are within her jurisdiction.” State Tax on Foreign-Held 
Bonds, 15 Wall. 300, 319, 21 L. Ed. 179. 

Of the different kinds of taxes which the state may impose, 
there is a vast number of which, from their nature, no notice can 
be given to the tax-payer, nor would notice be of any possible ad¬ 
vantage to him, such as poll-taxes, license taxes, (not dependent 
upon the extent of his business,) and, generally, specific taxes on 
things or persons or occupations. In such cases the legislature 
in authorizing the tax fixes its amount, and that is the end of the 
matter. If the tax be not paid the property of the delinquent may 
be sold, and he be thus deprived of his property. Yet there can be 


408 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

no question that the proceeding is due process of law, as there is 
no inquiry into the weight of evidence, or other element of a ju¬ 
dicial nature, and nothing could be changed by hearing the tax¬ 
payer. No right of his is therefore invaded. Thus, if the tax on 
animals be a fixed sum per head, or on articles a fixed sum per 
yard or bushel or gallon, there is nothing the owner can do which 
can ai¥ect the amount to be collected from him. So, if a person 
wishes a license to do business of a particular kind, or at a par¬ 
ticular place, such as keeping a hotel or a restaurant, or selling 
liquors or cigars or clothes, he has only to pay the amount re¬ 
quired by the law and go into the business. There is no need in 
such cases for notice or hearing. So, also, if taxes are imposed 
in the shape of licenses for privileges, such as those on foreign 
corporations for doing business in the state, or on domestic corpo¬ 
rations for franchises, if the parties desire the privilege they have 
only to pay the amount required. In such cases there is no neces¬ 
sity for notice or hearing. The amount of the tax would not be 
changed by it. But where a tax is levied on property not specific¬ 
ally, but according to its value, to be ascertained by assessors ap¬ 
pointed for that purpose, upon such evidence as they may obtain, 
a different principle comes in. The officers in estimating the value 
act judicially, and in most of the states provision is made for the 
correction of errors committed by them, through boards of revi¬ 
sion or equalization, sitting at designated periods provided by 
law, to hear complaints respecting the justice of the assessments. 
The law, in prescribing the time when such complaints will be 
heard, gives all the notice required, and the proceeding by which 
the valuation is determined, though it may be followed, if the tax 
be not paid, by a sale of the delinquent’s property, is due process 
of law. 

In some states, instead of a board of revision or equalization, the 
assessment may be revised by proceedings in the courts and be 
there corrected if erroneous, or set aside if invalid; or objections 
to the validity or amount of the assessment may be taken when 
the attempt is made to enforce it. In such cases all the opportuni¬ 
ty is given to the tax-payer to be heard respecting the assessment 
which can be deemed essential to render the proceedings due pro¬ 
cess of law. In Davidson v. New Orleans, this court decided this 
precise point. ^ ^ ^ The court, speaking by Mr. Justice Miller, 
said that it would lay down the following proposition as applicable 
to the case: “That whenever by the laws of a state, or by state 
authority, a tax, assessment, servitude, or other burden is imposed 
upon property for the public use, whether it be for the whole state 
or of some more limited portion of the community, and those laws 
provide for a mode of confirming or contesting the charge thus 
imposed in the ordinary courts of justice, with such notice to the 
person, or such proceeding in regard to the property as is appro- 


DUE PROCESS OF LAW 


40i> 

priate to the nature of the case, the judgment in such proceedings 
cannot be said to deprive the owner of his property without due 
process of law, however obnoxious it may be to other objections 
96 U. S. 97, 24 L. Ed. 616. 

This decision covers the cases at bar. The assessment under 
consideration could, by the law of California, be enforced only by 
legal proceedings, and in them any defense going either to its 
validity or amount could be pleaded. In ordinary taxation assess¬ 
ments, if not altered by a board of revision or of equalization, 
stand good, and the tax levied may be collected by a sale of the 
delinquent’s property; but assessments in California, for the pur¬ 
pose of reclaiming overflowed and swamp lands, can be enforced 
only by suits, and, of course, to their validity it is essential that 
notice be given to the tax-payer, and opportunity be afforded him 
to be heard respecting the assessment. In them he may set forth, 
by way of defense, all his grievances. Reclamation Dist. No. 108 
V. Evans, 61 Cal. 104. If property takeq upon an assessment, 
which can only be enforced in this way, be not taken by due pro¬ 
cess of law, then, as said by Mr. Justice Miller in the New Orleans 
Case, these words, as used in the Constitution, can have no definite 
meaning. * * * 

Decrees affirmed. 


TWINING V. NEW JERSEY. 

(Supreme Court of United States, 1908. 211 U. S. 78, 29 Sup. Ct. 14, 53 L. 

Ed. 97.) 

[Error to the Court of Errors and Appeals of New Jersey. 
Twining and another were convicted in the Monmouth court of 
quarter sessions of a high misdemeanor in deceiving a state bank 
examiner, and were sentenced to six and four years of imprison¬ 
ment respectively. In accordance with the law of the state, the 
jury were instructed that they might draw an unfavorable infer¬ 
ence against the defendants’ failure to testify in denial of evidence 
tending to incriminate him. The convictions being affirmed by 
the state appellate courts, this writ was taken on the ground that 
compulsory self-incrimination had been enforced against the de¬ 
fendants in violation of due process of law.] 

Mr. Justice Moody. exemption from testimonial 

compulsion, that is, from disclosure as a witness of evidence against 
oneself, forced by any form of legal process, is universal in Ameri¬ 
can law, though there may be differences as to its exact scope 
and limits. At the time of the formation of the Union the prin¬ 
ciple that no person could be compelled to be a witness against 
himself had become embodied in the common law and distin¬ 
guished it from all other systems of jurisprudence. It was gener- 



410 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


ally regarded then, as now, as a privilege of great value, a protec¬ 
tion to the innocent, though a shelter to the guilty, and a safe¬ 
guard against heedless, unfounded, or tyrannical prosecutions. 
* * The privilege was not included in the federal Constitu¬ 

tion as originally adopted, but was placed in one of the ten amend¬ 
ments which were recommended to the states by the first Con¬ 
gress, and by them adopted. Since then all the states of the Union 
have, from time to time, with varying form, but uniform meaning, 
included the privilege in their Constitutions, except the states of 
New Jersey and Iowa, and in those states it is held to be part of 
the existing law. * * jk [After referring to the historical in¬ 

terpretation of '‘due process of law” set forth in Murray v. Hobo¬ 
ken Hand Co., referred to in Hurtado v. California, ante, p. 400:] 
The question under consideration may first be tested by the 
application of these settled doctrines of this court. If the state¬ 
ment of Mr. Justice Curtis, as elucidated in Hurtado v. California, 
is to be taken literally, that alone might almost be decisive. For 
nothing is more certain, in point of historical fact, than that the 
practice of compulsory self-incrimination in the courts and else-* 
where existed for four hundred years after the granting of Magna 
Charta, continued throughout the reign of Charles I (though then 
beginning to be seriously questioned), gained at least some foot¬ 
hold among the early colonists of this country, and was not en¬ 
tirely omitted at trials in England until the eighteenth century. 
Wigmore, Ev. § 2250 (see for the colonies, note 108) ; Hallam’s 
Constitutional History of England, chapter 8, Widdleton’s Amer¬ 
ican Ed. vol. 2, p. 37 (describing the criminal jurisdiction of the 
court of star chamber) ; Bentham’s Rationale of Judicial Evidence, 
book 9, chap. 3, § 4. * * * [Here follow references to particular 

English and colonial practices in this regard.] 

But, without repudiating or questioning the test proposed by 
Mr. Justice Curtis for the court, or rejecting the inference drawn 
from English law, we prefer to rest our decision on broader 
grounds, and inquire whether the exemption from self-incrimina¬ 
tion is of such a nature that it must be included in the conception 
of due process. Is it a fundamental principle of liberty and justice 
which inheres in the very idea of free government and is the in¬ 
alienable right of a citizen of such a government? * 
the decision of this question we have the authority to take into 
account only those fundamental rights which are expressed in 
that provision; not the rights fundamental in citizenship, state 
or national, for they are secured otherwise; but the rights funda¬ 
mental in due process, and therefore an essential part of it. We 
have to consider whether the right is so fundamental in due pro¬ 
cess that a refusal of the right is a denial of due process. 

One aid to the solution of the question is to inquire how the 


DUE PROCESS OF LAW 


411 


right was rated during the time when the meaning of due process 
was in a formative state, and before it was incorporated in Ameri¬ 
can constitutional law. Did those who then were formulating and 
insisting upon the rights of the people entertain the view that the 
right was so fundamental that there could be no due process with¬ 
out it? It has already appeared that, prior to the formation of 
the American Constitutions, in which the exemption from compul¬ 
sory self-incrimination was specifically secured, separately, inde¬ 
pendently, and side by side with the requirement of due process, 
the doctrine was formed, as other doctrines of the law of evidence 
have been formed, by the course of decision in the courts, cover¬ 
ing a long period of time. Searching further, we find nothing to 
show that it was then thought to be other than a just and useful 
principle of law. None of the great instruments in which we are 
accustomed to look for the declaration of the fundamental rights 
made reference to it. The privilege was not dreamed of for hun¬ 
dreds of years after Magna Charta (1215), and could not have 
been implied in the “law of the land” there secured. The Petition 
of Right (1629), though it insists upon the right secured by Magna 
Charta to be condemned only by the law of the land, and sets 
forth, by way of grievance, divers violations of it, is silent upon the 
practice of compulsory self-incrimination, though it was then a 
matter of common occurrence in all the courts of the realm. The 
Bill of Rights of the first year of the reign of William and Mary 
(1689) is likewise silent, though the practice of questioning the 
prisoner at his trial had not then ceased. 

The negative argument which arises out of the omission of all 
reference to any exemption from compulsory self-incrimination in 
these three great declarations of English liberty (though it is not 
supposed to amount to a demonstration) is supported by the posi¬ 
tive argument that the English courts and Parliaments, as we have 
seen, have dealt with the exemption as they would have dealt 
with any other rule of evidence, apparently without a thought that 
the question was affected by the law of the land of Magna Charta, 
or the due process of law which is its equivalent. * * * [Here 

follow references to the amendments to the original Constitution 
proposed by the states ratifying it.] 

Thus it appears that four only of the thirteen original states 
insisted upon incorporating the privilege in the Constitution, and 
they separately and simultaneously with the requirement of due 
process of law, and that three states proposing amendments were 
silent upon this subject. It is worthy of note that two of these 
four states did not incorporate the privilege in their own Constitu¬ 
tions, where it would have had a much wider field of usefulness, 
until many years after. New York in 1821 and Rhode Island in 
1842 (its first Constitution). This survey does not tend to show 


412 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 

that it was then in this country the universal or even general belief 
that the privilege ranked among the fundamental and inalienable 
rights of mankind; and what is more important here, it affirma¬ 
tively shows that the privilege was not conceived to be inherent 
in due process of law, but, on the other hand, a right separate, in¬ 
dependent, and outside of due process. Congress, in submitting 
the amendments to the several states, treated the two rights as 
exclusive of each other. Such also has been the view of the states 
in framing their own Constitutions, for in every case, except in 
New Jersey and Iowa, where the due process clause or its equiva¬ 
lent is included, it has been thought necessary to include separately 
the privilege clause. Nor have we been referred to any decision 
of a state court, save one (State v. Height, 117 Iowa, 650, 91 N. 
W. 935, 59 h. R. A. 437, 94 Am. St. Rep. 323), where the exemp¬ 
tion has been held to be required by due process of law. The in¬ 
ference is irresistible that it has been the opinion of constitution 
makers that the privilege, if fundamental in any sense, is not funda¬ 
mental in due process of law, nor an essential part of it. We be¬ 
lieve that this opinion is proved to have been correct by every his¬ 
torical test by which the meaning of the phrase can be tried. 

The decisions of this court, though they are silent on the precise 
question before us, ought to be searched to discover if they present 
any analogies which are helpful in its decision. The essential 
elements of due process of law, already established by them, are 
singularly few, though of wide application and deep significance. 
We are not here concerned with the effect of due process in re¬ 
straining substantive laws, as, for example, that which forbids the 
taking of private property for public use without compensation. 
We need notice now only those cases which deal with the princi¬ 
ples which must be observed in the trial of criminal and civil 
causes. Due process requires that the court which assumes to de¬ 
termine the rights of parties shall have jurisdiction (Pennoyer v. 
Neff, 95 U. S. 714, 733, 24 L. Ed. 565, 572; Scott v. McNeal, 154 
U. S. 34, 14 Sup. Ct. 1108, 38 E. Ed. 896; Old Wayne Mut. Life 
Asso. V. McDonough, 204 U. S. 8, 27 Sup. Ct. 236, 51 E. Ed. 345), 
and that there shall be notice and opportunity for hearing given 
the parties (Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 
E. Ed. 215; Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410, 44 E. 
Ed. 520; and see Eondoner v. Denver, 210 U. S. 373, 28 Sup. Ct. 
708, 52 E. Ed. 1103). Subject to these two fundamental conditions, 
which seem to be universally prescribed in all systems of law es¬ 
tablished by civilized countries, this court lias, up to this time, sus¬ 
tained all state laws, statutory or judicially declared, regulating 
procedure, evidence, and methods of trial, and held them to be 
consistent with due process of law. ’K * * 

The cases proceed upon the theory that, given a court of justice 


DUE PROCESS OP LAW 


413 


which has jurisdiction, and acts, not arbitrarily, but in conformity, 
with a general law, upon evidence, and after inquiry made with 
notice to the parties affected and opportunity to be heard, then all 
the requirements of due process, so far as it relates to procedure 
in court and methods of trial and character and effect of evidence, 
are complied with. * ^ ^ [Here follow quotations from vari¬ 

ous cases to this effect.] 

In Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. 
Ed. 989, Mr. Justice Bradley, speaking for the whole court, said 
in effect, that the fourteenth amendment would not prevent a state 
from adopting or continuing the civil law instead of the common 
law. This dictum has been approved and made an essential part of 
the reasoning of the decision in Holden v. Hardy, 169 U. S. 387, 
389, 18 Sup. Ct. 383, 42 L. Ed. 789, 790, and Maxwell v. Dow, 176 
U. S. 598, 20 Sup. Ct. 448, 494, 44 L. Ed. 597. The statement ex¬ 
cludes the possibility that the privilege is essential to due process, 
for it hardly need be said that the interrogation of the accused 
at his trial is the practice in the civil law. 

Even if the historical meaning of due process of law and the 
decisions of this court did not exclude the privilege from it, it 
would be going far to rate it as an immutable principle of justice 
which is the inalienable possession of every citizen of a free gov¬ 
ernment. Salutary as the principle may seem to the great ma¬ 
jority, it cannot be ranked with the right to hearing before con¬ 
demnation, the immunity from arbitrary power not acting by gen¬ 
eral laws, and the inviolability of private property. The wisdom of 
the exemption has never been universally assented to since the 
days of Bentham, many doubt it to-day, and it is best defended not 
as an unchangeable principle of universal justice, but as a law 
proved by experience to be expedient. See Wigniore, Ev. § 2251. 
It has no place in the jurisprudence of civilized and free countries 
outside the domain of the common law, and it is nowhere observed 
among our own people in the search for truth outside the adminis¬ 
tration of the law. It should, must, and will be rigidly observed 
where it is secured by specific constitutional safeguards, but there 
is nothing in it which gives it a sanctity above and before Con¬ 
stitutions themselves. ^ ^ ^ 

Judgment affirmed. 

[Harlan, J., gave a dissenting opinion.] 


414 


CONSTITUTIONAL PKOTECTION OF CIVIL RIGHTS 


UNITED STATES v. JU TOY. 

(Supreme Court of United States, 1905. 198 U. S. 253, 25 Sup.- Ct. 644, 49 L. 

Ed. 1040.) 

Mr. Justice Holmfs. This case comes here on a certificate from 
the circuit court of appeals presenting certain questions of law. 
It appears that the appellee, being detained by the master of the 
steamship Doric for return to China, presented a petition for ha¬ 
beas corpus to the district court, alleging that he was a native- 
born citizen of the United States, returning after a temporary 
departure, and was denied permission to land by the collector of 
the port of San Francisco. It also appears from the petition that 
he took an appeal from the denial, and that the decision was af¬ 
firmed by the Secretary of Commerce and Labor. No further 
grounds are stated. The writ issued, and the United States made 
return, and answered, showing all the proceedings before the De¬ 
partment, which are not denied to have been in regular form, and 
setting forth all of the evidence and the orders made. The answer 
also denied the allegations of the petition. Motions to dismiss the 
writ were made on the grounds that the decision of the Secretary 
was conclusive, and that no abuse of authority was shown. These 
were denied, and the district court decided, seemingly on new 
evidence, subject to exceptions, that Ju Toy was a native-born 
citizen of the United States. An appeal was taken to the cir¬ 
cuit court of appeals, alleging errors the nature of which has been 
indicated. Thereupon the latter court certified the following ques¬ 
tions ; * * * 

“Third. In a habeas corpus proceeding in a district court of the 
United States, instituted * * * [upon the grounds of this 

case], should the court treat the finding and action of such exec¬ 
utive officers upon the question of citizenship and other questions 
of fact as having been made by a tribunal authorized to decide the 
same, and as final and conclusive unless it be made affirmatively 
to appear that such officers, in the case submitted to them, abused 
the discretion vested in them, or, in some other way, in hearing and 
determining the same, committed prejudicial error?” * * * 

The broad question is presented whether or not the decision of 
the Secretary of Commerce and Labor is conclusive. It was held 
in United States v. Sing Tuck, 194 U. S. 161, 167, 920, 24 Sup. 
Ct. 621, 48 L. Ed. 917, that the act of August 18, 1894 (28 Stat. 
372, 390, c. 301, § 1 [U. S. Comp. St. 1901, p. 1303]), purported 
to make it so, but whether the statute could have that effect con¬ 
stitutionally was left untouched, except by a reference to cases 
where an opinion already had been expressed. To quote the latest 
first, in Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 
86, 97, 724, 23 Sup. Ct. 611, 613, 47 L. Ed. 721, it was said: “That 


DUE PROCESS OF LAW 


415 


Congress may exclude aliens of a particular race from the United 
States, prescribe the terms and conditions upon which certain 
classes of aliens may come to this country, establish regulations 
for sending out of the country such aliens as come here in violation 
of law, and commit the enforcement of such provisions, conditions, 
and regulations exclusively to executive officers, without judicial 
intervention, are principles firmly established by the decisions of 
this court.” See, also. United States ex rel. Turner v. Williams, 
194 U. S. 279, 290, 291, 24 Sup. Ct. 719, 48 L. Ed. 979, 983, 984; 
Chin Bak Kan v. United States, 186 U. S. 193, 200, 22 Sup. Ct. 
891, 46 L. Ed. 1121, 1125. In Eok Young Yo v. United States, 185 
U. S. 296, 304, 305, 22 Sup. Ct. 686, 46 E. Ed. 917, 921, it was held 
that the decision of the collector of customs on the right of transit 
across the territory of the United States was conclusive, and, still 
more to the point, in Lem Moon Sing v. United States, 158 U. S. 
538, 15 Sup. Ct. 967, 39 L. Ed. 1082, where the petitioner for ha¬ 
beas corpus alleged facts which, if true, gave him a right to enter 
and remain in the country, it was held that the decision of the 
collector was final as to whether or not he belonged to the privi¬ 
leged class. 

It is true that it may‘be argued that these cases are not directly 
conclusive of the point now under decision. It may be said that 
the parties concerned were aliens, and that although they alleged 
absolute rights, and facts which it was contended went to the ju¬ 
risdiction of the officer making the decision, still their rights were 
only treaty or statutory rights, and therefore were subject to the 
implied qualification imposed by the later statute, which made 
the decision of the collector with regard to them final. The mean¬ 
ing of the cases, and the language which we have quoted, is not 
satisfied by so narrow an interpretation, but we do not delay upon 
them. They can be read. 

It is established, as we have said, that the act purports to make 
the decision of the Department final, whatever the ground on 
which the right to enter the country is claimed,—as well when it is 
citizenship as when it is domicil, and the belonging to a class ex¬ 
cepted from the exclusion acts. United States v. Sing Tuck, 194 
U. S. 161, 167, 24 Sup. Ct. 621, 48 L. Ed. 917, 920; Lem Moon 
Sing V. United States, 158 U. S. 538, 546, 547, 39 L. Ed. 1082, 15 
Sup. Ct. Rep. 967. It also is established by the former case and 
others which it cites that the relevant portion of the act of August 
18, 1894 (28 Stat. 372, c. 301), is not void as a whole. The statute 
has been upheld and enforced. But the relevant portion being a 
single section, accomplishing all its results by the same general 
words, must be valid as to all that it embraces, or altogether void. 
An exception of a class constitutionally exempted cannot be read 
into those general words merely for the purpose of saving what 


416 


CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS 


remains. That has been decided over and over again * * * 

[citing U. S. V. Reese, 92 U. S. 214, and other cases]. It necessa¬ 
rily follows that when such words are sustained, they are sus¬ 
tained to their full extent. 

In view of the cases which we have cited it seems no longer open 
to discuss the question propounded as a new one. Therefore we 
do not analyze the nature of the right of a person presenting him¬ 
self at the frontier for admission. In re Ross (Ross v. McIntyre) 
140 U. S. 453, 464, 11 Sup. Ct. 897, 35 L. Ed. 581, 586. But it is not 
improper to add a few words. The petitioner, although physically 
within our boundaries, is to be regarded as if he had been stopped 
at the limit of our jurisdiction, and kept there while his right to 
enter was under debate. If, for the purpose of argument, we as¬ 
sume that the fifth amendment applies to him, and that to deny 
entrance to a citizen is to deprive him of liberty, we nevertheless 
are of opinion that with regard to him due process of law does not 
require judicial trial. That is the result of the cases which we 
have cited, and the almost necessary result of the power of Con¬ 
gress to pass exclusion laws. That the decision may be intrusted 
to an executive officer, and that his decision is due process of law, 
was affirmed and explained in Nishimura Ekiu v. United States, 142 

U. S. 651, 660, 12 Sup. Ct. 336, 35 E. Ed. 1146, 1149, and in Fong 
Yue Ting v. United States, 149 U. S. 698, 713, 13 Sup. Ct. 1016, 37 
L. Ed. 905, 913, before the authorities to which we already have re¬ 
ferred. It is unnecessary to repeat the often-quoted remarks of Mr. 
Justice Curtis, speaking for the whole court in Den ex dem. Murray 

V. Hoboken Land & Improv. Co., 18 How. 272, 280, 15 L. Ed. 372, 
376, to show that the requirement of a judicial trial does not prevail 
in every case. Lem Moon Sing v. United States, 158 U. S. 538, 
546, 547, 15 Sup. Ct. 967, 39 L. Ed. 1082, 1085; Japanese Immi¬ 
grant Case (Yamataya v. Fisher) 189 U. S. 86, 100, 23 Sup. Ct. 
611, 47 L. Ed. 721, 725; Public Clearing House v. Coyne, 194 U. 
S. 497, 508, 509, 24 Sup. Ct. 789, 48 L. Ed. 1092, 1098. 

We are of opinion that * * * the third question should be 

answered, “Yes/' ^ ^ ^ 

So certified. 

[Brewer, J., gave a dissenting opinion, in which Peckham, J., 
concurred. Day, J., also dissented.] 


DENT V. WEST VIRGINIA. 

(Supreme Court of United States, 1889. 129 U. S. 114, 9 Sup. Ct. 231 32 L 

Ed. 623.) 

See ante, p. 231, for a report of this case. 



POLITICAL AND PUBLIC RIGHTS 


417 


POLITICAL AND PUBLIC RIGHTS' 


UNITED STATES v. WONG KIM ARK. 

(Supreme Court of United States, 1898. 169 U. S. 649, 18 Sup. Ct. 456, 42 L. 

Ed. 890.) 

[Appeal from the United States District Court for the Northern 
District of California. The collector of the port of San Francisco de¬ 
nied admission to the country to Wong Kim Ark, a Chinese person 
who was admitted to have been born in California and to be then 
returning from a temporary visit to China. He was ordered to be 
discharged upon a writ of habeas corpus, and the United States 
appealed.] 

Mr. Justice Gray. * * * The question presented by the rec¬ 

ord is whether a child born in the United States, of parents of Chinese 
descent, who at the time of his birth are subjects of the emperor of 
China, but have a permanent domicile and residence in the United 
States, and are there carrying on business, and are not employed in 
any diplomatic or official capacity under the emperor of China, becomes 
at the time of his birth a citizen of the United States, by virtue of the 
first clause of the fourteenth amendment of the Constitution: “All 
persons born or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of the state 
wherein they reside.’' 

I. In construing any act of legislation, whether a statute enacted by 
the legislature, or a Constitution established by the people as the su¬ 
preme law of the land, regard is to be had, not only to all parts of the 
.act itself, and of any former act of the same lawmaking power, of 
which the act in question is an amendment, but also to the condition 
and to the history of the law as previously existing, and in the light of 
which the new act must be read and interpr,eted. 

The Constitution of the United States, as originally adopted, uses 
the words “citizen of the United States” and “natural-born citizen of 
the United States.” By the original Constitution, every representative 
in Congress is required to have been “seven years a citizen of the Unit¬ 
ed States,” and every senator to have been “nine years a citizen of 
the United States”; and “no person except a natural-born citizen, or a 
citizen of the United States at the time of the adoption of this Consti¬ 
tution, shall be eligible to the office of president.” The fourteenth 
article of amendment, besides declaring that “all persons born or nat¬ 
uralized in the United States, and subject to the jurisdiction thereof, 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 234, 244. 

Hall Cases Const.L.—^27 



418 


POLITICAL AND PUBLIC RIGHTS 


are citizens of the United States and of the state wherein they reside/^ 
also declares that “no state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United States; 
nor shall any state deprive any person of life, liberty, or property, 
without due process of law; nor deny to any person within its juris¬ 
diction the equal protection of the laws.” And the fifteenth article of 
amendment declares that “the right of citizens of the United States 
to vote shall not be denied or abridged by the United States, or by any 
state, on account of race, color, or previous condition of servitude.” 

The Constitution nowhere defines the meaning of these words, either 
by way of inclusion or of exclusion, except in so far as this is done by 
the affirmative declaration that “all persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, are citizens of 
the United States.” In this, as in other respects, it must be interpreted 
in the light of the common law, the principles and history of which 
were familiarly known to the framers of the Constitution. Minor v. 
Happersett, 21 Wall. 162, 22 L. Ed. 627; Ex parte Wilson, 114 U. S. 
417, 422, 5 Sup. Ct. 935, 29 L. Ed. 89; Boyd v. U. S., 116 U. S. 616, 
624, 625, 6 Sup. Ct. 524, 29 L. Ed. 746; Smith v. Alabama, 124 U. S. 
465, 8 Sup. Ct. 564, 31 L. Ed. 508. The language of the Constitution, 
as has been well said, could not be understood without reference to the 
common law. 1 Kent, Comm. 336; Bradley, J., in Moore v. U. S., 91 
U. S. 270, 274, 23 L. Ed. 346. * * * 

II. The fundamental principle of the common law with regard to 
English nationality was birth within the allegiance—also called “ligeal- 
ty,” “obedience,” “faith,” or “power”—of the king. The principle em¬ 
braced all persons born within the king’s allegiance, and subject to his 
protection. Such allegiance and protection were mutual,—as expressed 
in the maxim, “Protectio trahit subjectionem, et subjectio protec- 
tionem,”—and were not restricted to natural-born subjects and nat¬ 
uralized subjects, or to those who had taken an oath of allegiance; 
but were predicable of aliens in amity, so long as they were within the 
kingdom. Children, born in England, of such aliens, were therefore 
natural-born subjects. But the children, born within the realm, of 
foreign ambassadors, or the children of alien enemies, born during 
and within their hostile occupation of part of the king’s dominions, 
were not natural-born subjects, because not born within the allegiance, 
the obedience, or the power, or, as would be said at this day, within 
the jurisdiction, of the king. 

This fundamental principle, with these qualifications or explana¬ 
tions of it, was clearly, though quaintly, stated in the leading case 
known as Calvin’s Case, or the Case of the Postnati, decided in 1608, 
after a hearing in the Exchequer Chamber before the Lord Chancellor 
and all the judges of England, and reported by Lord Coke and by Lord 
Ellesmere. Calvin’s Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, on 
Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 
659, 679. 


POLITICAL AND PUBLIC RIGHTS 


419 


The English authorities ever since are to the like eilect. Co. Litt. 
8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P. C. 
61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord 
Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, 
Confl. Laws, pp. 173-177, 741. * * * 

It thus clearly appears that by the law of England for the last 
three centuries, beginning before the settlement of this country, 
and continuing to the present day, aliens, while residing in the do¬ 
minions possessed by the crown of England, were within the al¬ 
legiance, the obedience, the faith or loyalty, the protection, the 
power, and the jurisdiction of the English sovereign; and there¬ 
fore every child born in England ^ of alien parents was a natural- 
born subject, unless the child of an ambassador or other diplo¬ 
matic agent of a foreign state, or of an alien enemy in hostile oc¬ 
cupation of the place where the child was born. 

HI. The same rule was in force in all the English colonies upon 
this continent down to the time of the Declaration of Independ¬ 
ence, and in the United States afterwards*, and continued to pre¬ 
vail under the Constitution as originally established. * * * 

In Inglis v. Sailors’ Snug Harbor (1830) 3 Pet. 99, 7 L. Ed. 617, 
* **' * Mr. Justice Story [said] : ^‘Two things usually concur to 

create citizenship: First, birth locally within the dominions of 
the sovereign; and, secondly, birth within the protection and obe¬ 
dience, or, in other words, within the ligeance, of the sovereign. 
That is, the party must be born within a place where the sovereign 
is at the time in full possession and exercise of his power, and the 
party must also at his birth derive protection from, and conse¬ 
quently owe obedience or allegiance to, the sovereign, as such, de 
facto. There are some exceptions which are founded upon pe¬ 
culiar reasons, and which, indeed, illustrate and confirm the gen¬ 
eral doctrine. Thus, a person who is born on the ocean is a sub¬ 
ject of the prince to whom his parents then owe allegiance; for he 
is still deemed under the protection of his sovereign, and born in 
a place where he has dominion in common with all other sover¬ 
eigns. So the children of an ambassador are held to be subjects 
of the prince whom he represents, although horn under the actual 
protection and in the dominions of a foreign prince.” 3 Pet. 155, 
7 L. Ed. 617. “The children of enemies, born in a place within 
the dominions of another sovereign, then occupied by them by 
conquest, are still aliens.” 3 Pet. 156, 7 L. Ed. 617. “Nothing is 
better settled at the common law than the doctrine that the chil¬ 
dren, even of aliens, born in a country, while the parents are res¬ 
ident there under the protection of the government, and owing a 
temporary allegiance thereto, are subjects by birth.” 3 Pet. 164, 
7 L. Ed. 617. * * * 

2 The authorities quoted and cited by the court use the words “British do¬ 
minions” instead of “England.” 


420 


POLITICAL AND PUBLIC RIGHTS 


IV. It was contended by one of the learned counsel for the Unit' 
ed States that the rule of the Roman law, by which the citizenship 
of the child followed that of the parent, was the true rule of inter¬ 
national law as now recognized in most civilized countries, and 
had superseded the rule of the common law, depending on birth 
within the realm, originally founded on feudal considerations. 

But at the time of the adoption of the Constitution of the United 
States in 1789, and long before, it would seem to have been the 
rule in Europe generally, as it certainly was in France, that, as said 
by Pothier, “citizens, true and native-born citizens, are those who 
are born within the extent of the dominion of France,” and “mere 
birth within the realm gives the rights of a native-born citizen, in¬ 
dependently of the origin of the father or mother, and of their dom¬ 
icile” ; and children born in a foreign country, of a French father 
who had not established his domicile there, nor given up the in¬ 
tention of returning, were also deemed Frenchmen, as Laurent 
says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction 
of exterritoriality, considered as born in France, and therefore in¬ 
vested with French nationality.” * * * The Code Napoleon 

of 1807 changed the law of France, and adopted, instead of the 
rule of country of birth, jus soli, the rule of descent or blood, jus 
sanguinis, as the leading principle. * * * 

The later modifications of the rule in Europe rest upon the Con¬ 
stitutions, laws, or ordinances of the various countries, and have 
no important bearing upon the interpretation and effect of the 
Constitution of the United States. The English naturalization act 
of 33 Viet. (1870) c. 14, and the commissioners’ report of 1869, out 
of which it grew, both bear date since the adoption of the four¬ 
teenth amendment of the Constitution; and, as observed by Mr. 
Dicey, that act has not affected the principle by which any person 
who, whatever the nationality of his parents, is born within the 
British dominions, acquires British nationality at birth, and is a 
natural-born British subject. Dicey, Confl. Laws, 741. At the 
time of the passage of that act, although the tendency on the con¬ 
tinent of Europe was to make parentage, rather than birthplace, 
the criterion of nationality, and citizenship was denied to the na¬ 
tive-born children of foreign parents in Germany, Switzerland, 
Sweden, and Norway, yet it appears still to have been conferred 
upon such children in Holland, Denmark, and Portugal, and, when 
claimed under certain specified conditions, in France, Belgium, 
Spain, Italy, Greece, and Russia. Cockb. Nat. 14-21. 

There is, therefore, little ground for the theory that at the time 
of the adoption of the fourteenth amendment of the Constitution 
of the United States there was any settled and definite rule of in¬ 
ternational law generally recognized by civilized nations, incon¬ 
sistent with the ancient rule of citizenship by birth within the do¬ 
minion. 


POLITICAL AND PUBLIC RIGHTS 


421 


Nor can it be doubted that it is the inherent right of every inde¬ 
pendent nation to determine for itself, and according to its own 
Constitution and laws, what classes of persons shall be entitled to 
its citizenship. 

Both in England and in the United States, indeed, statutes have 
been passed at various times enacting that certain issue born 
abroad of English subjects, or of American citizens, respectively, 
should inherit, to some extent at least, the rights of their parents. 
But those statutes applied only to cases coming within their pur¬ 
port, and they have never been considered, in either country, as af¬ 
fecting the citizenship of persons born within its dominion. * * * 

It was enacted by the statute of February 10, 1855, c. 71, that 
“persons heretofore born, or hereafter to be born, out of the limits 
and jurisdiction of the United States, whose fathers were or shall 
be at the time of their birth citizens of the United States, shall be 
deemed and considered and are hereby declared to be citizens of 
the United States: provided, however, that the rights of citizen¬ 
ship shall not descend to persons whose fathers never resided in 
the United States.” 10 Stat. 604; Rev. St. § 1993 (U. S. Comp. 
St. 1901, p. 1268). 

It thus clearly appears that, during the half century intervening 
between 1802 and 1855, there was no legislation whatever for the 
citizenship of children born abroad, during that period, of Amer¬ 
ican parents who had not become citizens of the United States be¬ 
fore the act of 1802; and that the act of 1855, like every other act 
of congress upon the subject, has, by express proviso, restricted 
the right of citizenship, thereby conferred upon foreign-born chil¬ 
dren of American citizens, to those children themselves, unless 
they became residents of the United States. Here is nothing to 
countenance the theory that a general rule of citizenship by blood 
or descent has displaced in this country the fundamental rule of 
citizenship by birth within its sovereignty. * * ❖ 

Y >K He * £j.g^ section of the fourteenth amendment of the 

Constitution begins with the words, “All persons born or naturalized 
in the United States, and subject to the jurisdiction thereof, are cit¬ 
izens of the United States and of the state wherein they reside.” 
As appears upon the face of the amendment, as well as from the 
history of the times, this was not intended to impose any new re¬ 
strictions upon citizenship, or to prevent any persons from becom¬ 
ing citizens by the fact of birth within the United States, who 
would thereby have become citizens according to the law existing 
before its adoption. It is declaratory in form, and enabling and 
extending in effect. Its main purpose doubtless was, as has been 
often recognized by this court, to establish the citizenship of free 
negroes, which had been denied in the opinion delivered by Chief 
Justice Taney in Dred Scott v. Sandford (1857) 19 How. 393, 15 
L. Ed. 691; and to put it beyond doubt that all blacks, as well as 


422 


POLITICAL AND PUBLIC RIGHTS 


whites, born or naturalized within the jurisdiction of the United 
States, are citizens of the United States. Slaughter House Cases 
(1873) 16 Wall. 36, 73, 21 L. Ed. 394; Strauder v! West Virginia 
(1879) 100 U. S. 303, 306, 25 L. Ed. 664; Ex parte Virginia (1879) 
100 U. S. 339, 345, 25 E. Ed. 676; Neal v. Delaware (1880) 103 U. S. 
370, 386, 26 L. Ed. 567; Elk v. Wilkins (1884) 112 U. S. 94, 101, 
5 Sup. Ct. 41, 28 L. Ed. 643. But the opening words, ‘'All persons 
born,’' are general, not to say universal, restricted only by place 
and jurisdiction, and not by color or race, as was clearly recog¬ 
nized in all the opinions delivered in the Slaughter House Cases, 
above cited. * * * 

Mr. Justice Miller, indeed, while discussing the causes which led 
to the adoption of the fourteenth amendment, made this remark: 
“The phrase ‘subject to its jurisdiction’ was intended to exclude 
from its operation children of ministers, consuls, and citizens or 
subjects of foreign states, born within the United States.” 16 
Wall. 73, 21 L. Ed. 394. This was wholly aside from the question 
in judgment, and from the course of reasoning bearing upon that 
question. It was unsupported by any argument, or by any refer¬ 
ence to authorities; and that it was not formulated with the same 
care and exactness as if the case before the court had called for an 
exact definition of the phrase is apparent from its classing foreign 
ministers and consuls together; whereas it was then well settled 
law, as has since been recognized in a judgment of this court in 
which Mr. Justice Miller concurred, that consuls, as such, and un¬ 
less expressly invested with a diplomatic character in addition to 
their ordinary powers, are not considered as intrusted with au¬ 
thority to represent their sovereign in his intercourse with foreign 
states, or to vindicate, his prerogatives, or entitled by the law of 
nations to the privileges and immunities of ambassadors or public 
ministers, but are subject to the jurisdiction, civil and criminal, of 
the courts of the country in which they reside. 1 Kent, Comm. 44; 
Story, Confl. Laws, § 48; Wheat. Int. Law (8th Ed.) § 249; The 
Anne (1818) 3 Wheat. 435, 445, 446, 4 L. Ed. 428; Gittings v. 
Crawford (1838) Taney, 1, 10, Fed. Cas. No. 5,465; In re Baiz 
(1890) 135 U. S. 403, 424, 10 Sup. Ct. 854, 34 L. Ed. 222. * * * 

The only adjudication that has been made by this court upon the 
meaning of the clause “and subject to the jurisdiction thereof,” in 
the leading provision of the fourteenth amendment, is Elk v. Wil¬ 
kins, 112 U. S. 94, 5 Sup. Ct. 41, 28 L. Ed. 643, in which it was de¬ 
cided that an Indian born a member of one of the Indian tribes 
within the United States, which still existed and was recognized 
as an Indian tribe by the United States, who had voluntarily sep¬ 
arated himself from his tribe, and taken up his residence among 
the white citizens of a state, but who did not appear to have been 
naturalized or taxed or in any way recognized or treated as a cit¬ 
izen, either by the United States or by the state, was not a citizen 


POLITICAL AND PUBLIC RIGHTS 


423 


of the United States, as a person born in the United States, “and 
subject to the jurisdiction thereof/’ within the meaning of the 
clause in question. 

That decision was placed upon the grounds that the meaning of 
those words was “not merely subject in some respect or degree to 
the jurisdiction of the United States, but completely subject to 
their political jurisdiction, and owing them direct and immediate 
allegiance”; that by the Constitution, as originally established, 
“Indians not taxed” were excluded from the persons according to 
whose numbers representatives in congress and direct taxes were 
apportioned among the several states, and congress was empow¬ 
ered to regulate commerce, not only “with foreign nations,” and 
among the several states, but “with the Indian tribes”; that the 
Indian tribes, being within the territorial limits of the United 
States, were not, strictly speaking, foreign states, but were alien 
nations, distinct political communities, the members of which owed 
immediate allegiance to their several tribes, and were not part of 
the people of the United States; that the alien and dependent con¬ 
dition of the members of one of those tribes could not be put off 
at their own will, without the action or assent of the United States; 
and that they were never deemed citizens, except when natural¬ 
ized, collectively or individually, under explicit provisions of a 
treaty, or of an act of Congress; and, therefore, that “Indians born 
within the territorial limits of the United States, members of, and 
owing immediate allegiance to, one of the Indian tribes (an alien, 
though dependent, power), although in a geographical sense born 
in the United States, are no more ‘born in the United States, and 
subject to the jurisdiction thereof,’ within the meaning of the first 
section of the fourteenth amendment, than the children of subjects 
of any foreign government born within the domain of that govern¬ 
ment, or the children born within the United States of ambassa¬ 
dors or other public ministers of foreign nations.” And it was 
observed that the language used, in defining citizenship, in the first 
section of the civil rights act of 1866,,by the very Congress which 
framed the fourteenth amendment, was “all persons born in the 
United States, and not subject to any foreign power, excluding 
Indians not taxed.” 112 U. S. 99-103, 5 Sup. Ct. 44-46, 28 L. Ed. 
643. * * * 

The decision in Elk v. Wilkins concerned only members of the 
Indian tribes within the United States, and had no tendency to 
deny citizenship to children born in the United States of foreign 
parents of Caucasian, African, or Mongolian descent, not in the 
diplomatic service of a foreign country. 

The real object of the fourteenth amendment of the Constitu¬ 
tion, in qualifying the words “all persons born in the United 


424 


POLITICAL AND PUBLIC RIGHTS 


States’’ by the addition “and subject to the jurisdiction thereof,” 
would appear to have been to exclude, by the fewest and fittest 
words (besides children of members of the Indian tribes, standing 
in a peculiar relation to the national government, unknown to the 
common law), the two classes of cases,—children born of alien en¬ 
emies in hostile occupation, and children of diplomatic representa¬ 
tives of a foreign state,—both of which, as has already been shown, 
by the law of England and by our own law, from the time of the 
first settlement of the English colonies in America, had been rec¬ 
ognized exceptions to the fundamental rule of citizenship by birth 
within the country. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 
7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 
Pet. 99, 155, 7 L. Ed. 617; 2 Kent, Comm. 39, 42. 

The principles upon which each of those exceptions rests were 
long ago distinctly stated by this court. * * * [Here follows 

a quotation from United States v. Rice, 4 Wheat. 246, 4 L. Ed. 
562 (1819), to the effect that the military occupation of a part of 
Maine by the British during the War of 1812 temporarily sus¬ 
pended the sovereignty of the United States there.] 

In the great case of The Exchange (1812) 7 Cranch, 116, 3 L. 
Ed. 287, the grounds upon which foreign ministers are, and other 
aliens are not, exempt from the jurisdiction of this country, were 
set forth by Chief Justice Marshall in a clear and powerful train 
of reasoning, of which it will be sufficient, for our present purpose, 
to give little more than the outlines. The opinion did not touch 
upon the anomalous case of the Indian tribes, the true relation of 
which to the United States was not directly brought before this 
court until some years afterwards, in Cherokee Nation v. Georgia 
(1831) 5 Pet. 1, 8 L. Ed. 25; nor upon the case of a suspension of 
the sovereignty of the United States over part of their territory 
by reason of a hostile occupation, such as was also afterwards pre¬ 
sented in U. S. V. Rice, above cited. But in all other respects it 
covered the whole question of what persons within the territory of 
the United States are subject to the jurisdiction thereof. 

The Chief Justice first laid down the general principle: “The 
jurisdiction of the nation within its own territory is necessarily ex¬ 
clusive and absolute. It is susceptible of no limitation not im¬ 
posed by itself. Any restriction upon it, deriving validity from 
an external source, would imply a diminution of its sovereignty 
to the extent of the restriction, and an investment of that sov¬ 
ereignty to the same extent in that power which could impose such 
restriction. All exceptions, therefore, to the full and complete 
power of a nation within its own territories, must be traced up to 
the consent of the nation itself. They can flow from no other le¬ 
gitimate source. This consent may be either express or implied. 
In the latter case, it is less determinate, exposed more to the un- 


POLITICAL AND PUBLIC RIGHTS 


425 


certainties of construction; but, if understood, not less obligatory.’’ 
7 Cranch, 136, 3 L. Ed. 287. 

He then stated, and supported by argument and illustration, the 
propositions that “this full and absolute territorial jurisdiction, be¬ 
ing alike the attribute of every sovereign, and being incapable of 
conferring extraterritorial power,” has “given rise to a class of 
cases in which every sovereign is understood to waive the exercise 
of a part of that complete exclusive territorial jurisdiction which 
has been stated to be the attribute of every nation,” the first of 
which is the exemption from arrest or detention of the person of a 
foreign sovereign entering its territory with its license, because “a 
foreign sovereign is not understood as intending to subject himself 
to a jurisdiction incompatible with his dignity and the dignity of 
his nation”; “a second case, standing on the same principles with 
the first, is the immunity which all civilized nations allow to for¬ 
eign ministers”; “a third case, in which a sovereign is understood 
to cede a portion of his territorial jurisdiction, is where he allows 
the troops of a foreign prince to pass through his dominions”; and, 
in conclusion, that “a public armed ship, in the service of a foreign 
sovereign, with whom the government of the United States is at 
peace, and having entered an American port open for her reception, 
on the terms on which ships of war are generally permitted to en¬ 
ter the ports of a friendly power, must be considered as having 
come into the American territory, under an implied promise that 
while necessarily within it, and demeaning herself in a friendly 
manner, she should be exempt from the jurisdiction of the country.” 
7 Cranch, 137-139, 147, 3 U. Ed. 287. * * * 

The reasons for not allowing to other aliens exemption “from the 
jurisdiction of the country in which they are found” were stated as 
follows: “When private individuals of one nation spread them¬ 
selves through another as business or caprice may direct, mingling 
indiscriminately with the inhabitants of that other, or when mer¬ 
chant vessels enter for the purposes of trade, it would be obviously 
inconvenient and dangerous to society, and would subject the laws 
to continual infraction, and the government to degradation, if such 
individuals or merchants did not owe temporary and local alle¬ 
giance, and were not amenable to the jurisdiction of the country. 
Nor can the foreign sovereign have any motive for wishing such 
exemption. His subjects thus passing into foreign countries are 
not employed by him, nor are they engaged in national pursuits. 
Consequently, there are powerful motives for not exempting per¬ 
sons of this description from the jurisdiction of the country in 
which they are found, and no one motive for requiring it. The 
implied license, therefore, under which they enter, can never be 
construed to grant such exemption.” 7 Cranch, 144, 3 E. Ed. 
287. * ♦ * 


426 


POLITICAL AND PUBLIC RIGHTS 


These considerations confirm the view, already expressed in this 
opinion, that the opening sentence of the fourteenth amendment 
is throughout affirmative and declaratory, intended to allay doubts 
and to settle controversies which had arisen, and not to impose any 
new restrictions upon citizenship. * * * 

This sentence of the fourteenth amendment is declaratory of ex¬ 
isting rights, and affirmative of existing law, as to each of the 
qualifications therein expressed,—“born in the United States,” 
“naturalized in the United States,” and “subject to the jurisdiction 
thereof”; in short, as to everything relating to the acquisition of 
citizenship by facts occurring within the limits of the United States. 
But it has not touched the acquisition of citizenship by being born 
abroad of American parents; and has left that subject to be regu¬ 
lated, as it had always been, by Congress, in the exercise of the 
power conferred by the Constitution to establish a uniform rule 
of naturalization. 

The effect of the enactments conferring citizenship on foreign- 
born children of American parents has been defined, and the funda¬ 
mental rule of citizenship by birth within the dominion of the 
United States, notwithstanding alienage of parents, has been af¬ 
firmed, in well-considered opinions of the executive departments of 
the government, since the adoption of the fourteenth amendment 
of the Constitution. ★ * [Here follow quotations from these 

opinions, which hold] that such statutes cannot, consistently with 
our own established rule of citizenship by birth in this country, 
operate extraterritorially so far as to relieve any person born and 
residing in a foreign country, and subject to its government, from 
his allegiance to that country. * * * 

The foregoing considerations and authorities irresistibly lead us 
to these conclusions: The fourteenth amendment affirms the an¬ 
cient and fundamental rule of citizenship by birth within the terri¬ 
tory, in the allegiance and under the protection of the country, 
including all children here born of resident aliens, with the excep¬ 
tions or qualifications (as old as the rule itself) of children of 
foreign sovereigns or their ministers, or born on foreign public 
ships, or of enemies within and during a hostile occupation of 
part of our territory, and with the single additional exception of 
children of members of the Indian tribes owing direct allegiance to 
their several tribes. The amendment, in clear words and in mani¬ 
fest intent, includes the children born within the territory of the 
United States of all other persons, of whatever race or color, dom¬ 
iciled within the United States. Every citizen or subject of an¬ 
other country, while domiciled here, is within the allegiance and 
the protection, and consequently subject to the jurisdiction, of 
the United States. His allegiance to the United States is direct and 
immediate, and, although but local and temporary, continuing only 


POLITICAL AND PUBLIC RIGHTS 


427 


so long as he remain within our territory, is yet, in the words of 
Lord Coke in Calvin’s Case, 7 Rep. 6a, ‘‘strong enough to make 
a natural subject, for, if he hath issue here, that issue is a natural- 
born subject ; and his child, as said by Mr. Binney in his essay 
before quoted, “if born in the country, is as much a citizen as the 
natural-born child of a citizen, and by operation of the same prin¬ 
ciple. It can hardly be denied that an alien is completely subject 
to the political jurisdiction of the country in which he resides, 
seeing that, as said by Mr. Webster, when secretary of state, in 
his report to the president on Thrasher’s Case in 1851, and since 
repeated by this court: “Independently of a residence with inten¬ 
tion to continue such residence; independently of any domicilia¬ 
tion ; independently of the taking of any oath of allegiance, or of 
renouncing any former allegiance,—it is well known that by the 
public law an alien, or a stranger born, for so long a time as he con¬ 
tinues within the dominions of a foreign government, owes obedi¬ 
ence to the laws of that government, and may be punished for trea¬ 
son or other crimes as a native-born subject might be, unless his 
case is varied by some treaty stipulations.” Executive Documents 
H. R. No. 10, 1st Sess. 32d Cong. p. 4; 6 Webster’s Works, 526; 
Carlisle v. United States, 16 Wall. 147, 155, 21 L. Ed. 426; Cal¬ 
vin’s Case, 7 Rep. 6a; Ellesmere, Postnati, 63; 1 Hale, P. C. 62; 
4 Bl. Comm. 74, 92. * * * 

VI. * * It is true that Chinese persons born in China cannot 
be naturalized, like other aliens, by proceedings under the naturaliza¬ 
tion laws. But this is for want of any statute or treaty authorizing or 
permitting such naturalization, as will appear by tracing the his¬ 
tory of the statutes, treaties, and decisions upon that subject, al¬ 
ways bearing in mind that statutes enacted by Congress, as well as 
treaties made by the president and senate, must yield to the para- 
, mount and supreme law of the Constitution. 

The power, granted to Congress by the Constitution, “to estab¬ 
lish an uniform rule of naturalization,” was long ago adjudged by 
this court to be vested exclusively in congress. Chirac v. Chirac 
(1817) 2 Wheat. 259, 4 L. Ed. 234. For many years after the estab¬ 
lishment of the original Constitution, and until two years after the 
adoption of the fourteenth amendment, congress never authorized 
the naturalization of any one but “free white persons.” * * * 

By the act of July 14, 1870, c. 254, § 7, for the first time, the natu¬ 
ralization laws were “extended to aliens of African nativity and 
to persons of African descent.” 16 Stat. 256. This- extension, as 
embodied in the Revised Statutes, took the form of providing that 
those laws should “apply to aliens [being free white persons, and 
to aliens] of African nativity and to persons of African descent”; 
and it was amended by the act of Feb. 18, 1875, c. 80, by inserting 
the words above printed in brackets. Rev. St. (2d Ed.) § 2169, 


428 


POLITICAL AND PUBLIC RIGHTS 


18 Stat. 318 (U. S. Comp. St. 1901, p. 1333). Those statutes were 
held, by the Circuit Court of the United States in California, not 
to embrace Chinese aliens. In re Ah Yup (1878) 5 Sawy. 155, 
Fed. Cas. No. 104. And by the act of May 6, 1882, c. 126, § 14, 
it was expressly enacted that, “hereafter no state court or court 
of the United States shall admit Chinese to citizenship.” 22 Stat. 
61 (U. S. Comp. St. 1901, p. 1333). 

In Fong Yue Ting v. U. S. (1893), above cited, this court said: 
“Chinese persons not born in this country have never been rec¬ 
ognized as citizens of the United States, nor authorized to become 
such under the naturalization laws.” 149 U. S. 716, 13 Sup. Ct. 
1023, 37 L. Ed. 905. * * * 

The power of naturalization, vested in congress by the Consti-- 
tution, is a power to confer citizenship, not a. power to take it 
away. ^ * Congress having no power to abridge the rights 

conferred by the Constitution upon those who have become natu¬ 
ralized citizens by virtue of acts of Congress, a fortiori no act or 
omission of congress, as to providing for the naturalization of 
parents or children of a particular race, can affect citizenship ac¬ 
quired as a birthright, by virtue of the Constitution itself, without 
any aid of legislation. The fourteenth amendment, while it leaves 
the power, where it was before, in congress, to regulate naturaliza¬ 
tion, has conferred no authority upon congress to restrict the effect 
of birth, declared by the Constitution to constitute a sufficient and 
complete right to citizenship. * * ^ 

VII. Upon the facts agreed in this case, the American citizen¬ 
ship which Wong Kim Ark acquired by birth within the United 
States has not been lost or taken away by anything happening 
since his birth. No doubt he might himself, after coming of age, 
renounce this citizenship, and become a citizen of the country of 
his parents, or of any other country; for by our law, as solemnly 
declared by congress, “the right of expatriation is a natural and 
inherent right of all people,” and “any declaration, instruction, 
opinion, order or direction of any officer of the United States,, 
which denies, restricts, impairs or questions the right of expatria¬ 
tion, is declared inconsistent with the fundamental principles of 
the republic.” Rev. St. § 1999, re-enacting Act July 27, 1868, c. 
249, § 1, 15 Stat. 223, 224 (U. S. Comp. St. 1901, p. 1269). Whether 
any act of himself, or of his parents, during his minority, could 
have the same effect, is at least doubtful. But it would be out of 
place to pursue that inquiry. * * ^ 

Order affirmed. 

[Fuller, C. J., gave a dissenting opinion, in which Harean, J., 
concurred.] 


POLITICAL AND PUBLIC RIGHTS 


429 


MAXWELL V. DOW. 

(Supreme Court of United States, 1900. 176 U. S. 581, 20 Sup. Ct. 448 494 

44 L. Ed. 597.) 

[Error to the Supreme Court of Utah. Upon an information 
hied against Maxwell, charging him with robbery, he was tried in 
Utah by a jury of eight jurors, was found guilty, and sent to prison. 
He applied for a writ of habeas corpus upon the ground, among 
others, that this procedure, though authorized by the Utah Con¬ 
stitution, abridged his privileges and immunities as a citizen of the 
United States, in violation of the fourteenth amendment of the fed¬ 
eral Constitution. The Utah Supreme Court denied his petition, 
and this writ of error was taken.] 

Mr. Justice Peckham. * * * What are the privileges and 

immunities of a citizen of the United States which no state can 
abridge? Do they include the right to be exempt from trial, for 
an infamous crime, in a state court and under state authority ex¬ 
cept upon presentment by a grand jury? And do they also include 
the right in all criminal prosecutions in a state court to be tried by 
a jury composed of twelve jurors? 

That a jury composed, as at common law, of twelve jurors was 
intended by the sixth amendment to the federal Constitution, there 
can be no doubt. Thompson v. Utah, 170 U. S. 343, 349, 18 Sup. 
Ct. 620, 42 L. Ed. 1061. And as the right of trial by jury in cer¬ 
tain suits at common law is preserved by the seventh amendment, 
such a trial implies that there shall be an unanimous verdict of 
twelve jurors in all federal courts where a jury trial is held. Amer¬ 
ican Pub. Co. V. Fisher, 166 U. S. 464, 17 Sup. Ct. 618, 41 L. Ed. 
1079; Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717, 41 L. 
Ed. 1172. 

It would seem to be quite plain that the provision in the Utah 
Constitution for a jury of eight jurors in all state criminal trials, 
for other than capital offenses, violates the sixth amendment, pro¬ 
vided that amendment is now to be construed as applicable to crim¬ 
inal prosecutions of citizens of the United States in state courts. 

It is conceded that there are certain privileges.or immunities pos¬ 
sessed by a citizen of the United States, because of his citizenship, 
and that they cannot be abridged by any action of the states. In 
order to limit the powers which it was feared might be claimed or 
exercised by the federal government, under the provisions of the 
Constitution as it was when adopted, the first ten amendments to 
that instrument were proposed to the legislatures of the several 
states by the first Congress on the 25th of September, 1789. They 
were intended as restraints and limitations upon the powers of the 
general government, and were not intended to and did not have 
any effect upon the powers of the respective states. This has been 
many times decided. ♦ ♦ ♦ 


430 


POLITICAL AND PUBLIC RIGHTS 


It is claimed, however, that since the adoption of the fourteenth 
amendment the effect of the former amendments has been thereby 
changed and greatly enlarged. It is now urged in substance that 
all the provisions contained in the first ten amendments, so far as 
they secure and recognize the fundamental rights of the individual 
as against the exercise of federal power, are by virtue of this 
amendment to be regarded as privileges or immunities of a citizen 
of the United States, and therefore the states cannot provide for 
any procedure in state courts which could not be followed in a 
federal court because of the limitations contained in those amend¬ 
ments. This was also the contention made upon the argument in 
the Spies Case, 123 U. S. 131, 151, 8 Sup. Ct. 22, 31 L. Ed. 80; but 
in the opinion of the court therein, which was delivered by Mr. 
Chief Justice Waite, the question was not decided because it was 
held that the case did not require its decision. 

In the Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394, the 
subject of the privileges or immunities of citizens of the United 
States, as distinguished from those of a particular state, was treat¬ 
ed by Mr. Justice Miller in delivering the opinion of the court. He 
stated that the argument in favor of the plaintiffs, claiming that 
the ordinance of the city of New Orleans was invalid, rested wholly 
on the assumption that the citizenship is the same and the privi¬ 
leges and immunities guaranteed by the Fourteenth Amendment 
are the same as to citizens of the United States and citizens of the 
several states. This he showed to be not well founded; that there 
was a citizenship of the United States and a citizenship of the 
states, which were distinct from each other, depending upon differ¬ 
ent characteristics and circumstances in the individual; that it was 
only privileges and immunities of the citizen of the United States 
that were placed by the amendment under the protection of the 
federal Constitution, and that the privileges and immunities of a 
citizen of a state, whatever they might be, were not intended to 
have any additional protection by the paragraph in question, but 
they must rest for their security and protection where they have 
heretofore rested. 

He then proceeded to inquire as to the meaning of the words 
“privileges and immunities” as used in the amendment, and said 
that the first occurrence of the phrase in our constitutional history 
is found to be in the fourth article of the old Confederation, in 
which it was declared “that the better to secure and perpetuate 
mutual friendship and intercourse among the people of the differ¬ 
ent states in this union the free inhabitants of each of these states, 
paupers, vagabonds, and fugitives from justice excepted, shall be 
entitled to all the privileges and immunities of free citizens in the 
several states; and the people of each state shall have free ingress 
and egress to and from any other state, and shall enjoy therein all 
the privileges of trade and commerce, subject to the same duties,. 


POLITICAL AND PUBLIC RIGHTS 


431 


impositions, and restrictions as the inhabitants thereof respective¬ 
ly.” A provision corresponding to this he found in the Constitu¬ 
tion of the United States in section 2 of the fourth article, wherein 
it is provided that “the citizens of each state shall be entitled to all 
the privileges and immunities of citizens of the several states.” 
What those privileges were is not defined in the Constitution, but 
the justice said there could be but little question that the purpose 
of both those provisions was the same, and that the privileges and 
immunities intended were the same in each. He then referred to 
the case of Corfield v. Coryell, decided by Mr. Justice Washington 
in the circuit court for the district of Pennsylvania, in 1823 (4 
Wash. C. C. 371, Fed. Cas. No. 3,230), where the question of the 
meaning of this clause in the Constitution was raised. Answering 
the question, what were the privileges and immunities of citizens 
of the several states, Mr. Justice Washington said in that case: 

“We feel no hesitation in confining these expressions to those 
privileges and immunities which are in their nature fundamental; 
which belong of right to the citizens of all free governments, and 
which have at all times been enjoyed by the citizens of the several 
states which compose this Union from the time of their becoming 
free, independent, and sovereign. What these fundamental prin¬ 
ciples are it would perhaps be more tedious than difficult to enu¬ 
merate. They may, however, be all comprehended under the fol¬ 
lowing general heads: Protection by the government, the enjoy¬ 
ment of life and liberty with the right to acquire and possess prop¬ 
erty of every kind, and to pursue and obtain happiness and safety, 
subject, nevertheless, to such restraints as the government may 
prescribe for the general good of the whole.” 

Having shown that prior to the fourteenth amendment the leg¬ 
islation under review would have been regarded as relating to the 
privileges or immunities of citizens of the state, with which the 
United States had no concern. Justice Miller continued: 

“It would be the vainest show of learning to attempt to prove by 
citations of authority, that up to the adoption of the recent amend¬ 
ments no claim or pretense was set up that those rights depended 
on the federal government for their existence or protection, beyond 
the very few express limitations which the federal Constitution im¬ 
posed upon the states—such, for instance, as the prohibition 
against ex post facto laws, bills of attainder, and laws impairing 
the obligation of contracts. But with the exception of these and 
a few other restrictions the entire domain of the privileges and im¬ 
munities of citizens of the states, as above defined, lay within the 
constitutional and legislative power of the states, and without that 
of the federal government. Was it the purpose of the fourteenth 
amendment, by the simple declaration that no state should make or 
enforce any law which shall abridge the privileges and immunities 
of citizens of the United States, to transfer the security and protec- 


432 


POLITICAL AND PUBLIC RIGHTS 


tion of all the civil rights, which we have mentioned, from the 
states to the federal government? And where it is declared that 
Congress shall have the power to enforce that article, was it in¬ 
tended to bring within the power of Congress the entire domain 
of civil rights heretofore belonging exclusively to the states? 

“All this and more must follow, if the proposition of the plain¬ 
tiffs in error be sound. For not only are these rights subject to 
the control of Congress whenever in its discretion any of them are 
supposed to be abridged by state legislation, but that body may 
also pass laws in advance, limiting and restricting the exercise of 
legislative power by the states, in their most ordinary and usual 
functions, as in its judgment it may think proper on all such sub¬ 
jects. And, still further, such a construction, followed by the re¬ 
versal of the judgments of the supreme court of Louisiana in these 
cases, would constitute this court a perpetual censor upon all legis¬ 
lation of the states, on the civil rights of their own citizens, with 
authority to nullify such as it did not approve as consistent with 
those rights as they existed at the time of the adoption of this 
amendment. The argument, we admit, is not always the most 
conclusive which is drawn from the consequences urged against 
the adoption of a particular construction of an instrument. But 
when, as in the case before us, these consequences are so serious, 
so far-reaching and pervading, so great a departure from the struc¬ 
ture and spirit of our institutions; when the effect is to fetter and 
degrade the state governments by subjecting them to the control 
of Congress in the exercise of powers heretofore universally con¬ 
ceded to them of the most ordinary and fundamental character; 
when, in fact, it radically changes the whole theory of the relations 
of the state and federal governments to each other and of both 
these governments to the people,—the argument has a force that 
is irresistible in the absence of language which expresses such a 
purpose too clearly to admit of doubt. We are convinced that no 
such results were intended by the Congress which proposed these 
amendments, nor by the legislatures of the states which ratified 
them.” 

If the rights granted by the Louisiana legislature did not in¬ 
fringe upon the privileges or immunities of citizens of the United 
States, the question arose as to what such privileges were, and in 
enumerating some of them, without assuming to state them all, it 
was said that a citizen of the United States, as such, had the right 
to come to the seat of government to assert claims or transact busi¬ 
ness, to seek the protection of the government or to share its offi¬ 
ces; he had the right of free access to its seaports, its various of¬ 
fices throughout the country, and to the courts of justice in the 
several states; to demand the care and protection of the general 
government over his life, liberty, and property when on the high 
seas or within the jurisdiction of a foreign government; the right, 


POLITICAL AND PUBLIC RIGHTS 


433 


with others, to peaceably assemble and petition for a redress of 
grievances; the right to the writ of habeas corpus, and to use, the 
navigable waters of the United States, however they may penetrate 
the territory of the several states; also all rights secured to our 
citizens by treaties with foreign nations; the right to become citi¬ 
zens of any state in the Union by a bona fide residence therein, 
with the same rights as other citizens of that state; and the rights 
secured to him by the thirteenth and fifteenth amendments to the 
Constitution. A right, such as is claimed here, was not mentioned, 
and we may suppose it was regarded as pertaining to the state, and 
not covered by the amendment. * * * 

We have made this extended reference to the case because of its 
great importance, the thoroughness of the treatment of the subject, 
and the great ability displayed by the author of the opinion. Al¬ 
though his suggestion that only discrimination by a state against 
the negroes as a class or on account of their race was covered by 
the amendment as to the equal protection of the laws has not been 
affirmed by the later cases, yet it was but the expression of his 
belief as to what would be the decision of the court when a case 
came before it involving that point. The opinion upon the matters 
actually involved and maintained by the judgment in the case has 
never been doubted or overruled by any judgment of this court. 
It remains one of the leading cases upon the subject of that por¬ 
tion of the fourteenth amendment of which it treats. 

The definition of the words “privileges and immunities,'’ as given 
by Mr. Justice Washington, was adopted in substance in Paul v. 
Virginia, 8 Wall. 168, 180, 19 L. Ed. 360, and in Ward v. Maryland, 
12 Wall. 418, 430, 20 U. Ed. 453. These rights, it is said in the 
Slaughter-House Cases, have always been held to be the class of 
rights which the state governments were created to establish and 
secure. ^ * 

It was said in Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627, 
that the amendment did not add to the privileges and immunities 
of a citizen; it simply furnished an additional guaranty for the 
protection of such as he already had. And in Re Kemmler, 136 U. 
S. 436, 448, 10 Sup. Ct. 930, 934, 34 L. Ed. 519, 524, it was stated 
by the present Chief Justice that: “The fourteenth amendment 
did not radically change the whole theory of the relations of the 
state and federal governments to each other, and of both govern¬ 
ments to the people. The same person may be at the same time a 
citizen of the United States and a citizen of a state. Protection to 
life, liberty, and property rests primarily with the states, and the 
amendment furnishes an additional guaranty against any encroach¬ 
ment by the states upon those fundamental rights which belong to 
citizenship, and which the state governments were created to se¬ 
cure. The privileges and immunities of citizens of the United 
Hall Cases Const.L.—28 


434 


POLITICAL AND PUBLIC RIGHTS 


States, as distinguished from the privileges and immunities of 
citizens of the states, are indeed protected by it; but those are 
privileges and immunities arising out of the nature and essential 
character of the national government, and granted or secured by 
the Constitution of the United States. United States v. Cruik- 
shank, 92 U. S. 542, 23 L. Ed. 588; Slaughter-House Cases, 16 
Wall. 36, 21 L. Ed. 394.” * * 

In Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678, it was held that 
a trial by jury in suits at common law in the state courts was not 
a privilege or immunity belonging to a person as a citizen of the 
United States, and protected, therefore, by the fourteenth amend¬ 
ment. * * * 

This case shows that the fourteenth amendment in forbidding a 
state to abridge the privileges or immunities of citizens of the 
United States does not include among them the right of trial by 
jury in a civil case, in a state court, although the right to such a 
trial in the federal courts is specially secured to all persons in the 
cases mentioned in the seventh amendment. 

Is any one of the rights secured to the individual by the fifth or 
by the sixth amendment any more a privilege or immunity of a 
citizen of the United States than are those secured by the seventh? 
In none are they privileges or immunities granted and belonging 
to the individual as a citizen of the United States, but they are 
secured to all persons as against the federal government, entirely 
irrespective of such citizenship. As the individual does not enjoy 
them as a privilege of citizenship of the United States, therefore, 
when the fourteenth amendment prohibits the abridgement by the 
states of those privileges or immunities which he enjoys as such 
citizen, it is not correct or reasonable to say that it covers and 
extends to certain rights which he does not enjoy by reason of his 
citizenship, but simply because those rights exist in favor of all 
individuals as against federal governmental powers. The nature or 
character of the right of trial by jury is the same in a criminal 
prosecution as in a civil action, and in neither case does it spring 
from nor is it founded upon the citizenship of the individual as a 
citizen of the United States, and if not, then it cannot be said that 
in either case it is a privilege or immunity which alone belongs to 
him as such citizen. * * Those are not distinctly privileges 

or immunities of such citizenship, where everyone has the same as 
against the federal government, whether citizen or not. * * 

In Re Kemmler, 136 U. S. 436, 448, 10 Sup. Ct. 930, 34 E. Ed. 519, 
524, it was stated that it was not contended and could not be that 
the eighth amendment to the federal Constitution was intended to 
apply to the states. * * * Presser v. Illinois, 116 U. S. 252, 

6 Sup. Ct. 580, 29 U. Ed. 615, it was held that the second amend¬ 
ment to the Constitution, in regard to the right of the people to 
bear arms, is a limitation only on the power of Congress and the 


POLITICAL AND PUBLIC RIGHTS 


435 


national government, and not of the states. * * 4= O’Neil v. 
Vermont, 144 U. S. 323, 332, 12 Sup. Ct. 693, 36 L. Ed. 450, 456, it 
was stated that as a general question it has always been ruled that 
the eighth amendment to the Constitution of the United States 
does not apply to the states. In Thorington v. Montgomery, 147 
U. S. 490, 13 Sup. Ct. 394, 37 L. Ed. 252, it was said that the fifth 
amendment to the Constitution operates exclusively in restraint 
of federal power, and has no application to the states. 

We have cited these cases for the purpose of showing that the 
privileges and immunities of citizens of the United States do not 
necessarily include all the rights protected by the first eight amend¬ 
ments to the federal Constitution against the powers of the federal 
government. They were decided subsequently to the adoption of 
the fourteenth amendment, and if the particular clause of that 
amendment, now under consideration, had the effect claimed for 
it in this case, it is not too much to say that it would have been 
asserted and the principles applied in some of them. * * * 

Judgment affirmed. 

[Harlan, J., gave a dissenting opinion.] 


POPE V. WILLIAMS (1904) 193 U. S. 621, 632-634, 24 Sup. Ct. 
573, 48 L. Ed. 817, Mr. Justice Peckham (affirming a decision of 
the Court of Appeals of Maryland) : 

“The simple matter to be herein determined is whether, with 
reference to the exercise of the privilege of voting in Maryland, the 
legislature of that state had the legal right to provide that a per¬ 
son coming into the state to reside should make the declaration 
of intent a year before he should have the right to be registered as 
a voter of the state. 

“The privilege to vote in any state is not given by the federal 
Constitution, or by any of its amendments. It is not a privilege 
springing from citizenship of the United States. Minor v. Happer- 
sett, 21 Wall. 162, 22 L. Ed. 627. It may not be refused on account 
of race, color, or previous condition of servitude, but it does not 
follow from mere citizenship of the United States. In other words, 
the privilege to vote in a state is within the jurisdiction of the 
state itself, to be exercised as the state may direct, and upon such 
terms as to it may seem proper, provided, of course, no discrimina¬ 
tion is made between individuals, in violation of the federal Con¬ 
stitution. The state might provide that persons of foreign birth 
could vote without being naturalized, and, as stated by Mr. Chief 
Justice Waite in Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627, 
such persons were allowed to vote in several of the states upon 
having declared their intentions to become citizens of the United 
States. Some states permit women to vote; others refuse them 



436 


POLITICAL AND PUBLIC RIGHTS 


that privilege. A state, so far as the federal Constitution Is con¬ 
cerned, might provide by its own Constitution and laws that none 
but native-born citizens should be permitted to vote, as the fed¬ 
eral Constitution does not confer the right of suffrage upon any 
one, and the conditions under which that right is to be exercised 
are matters for the states alone to prescribe, subject to the condi¬ 
tions of the federal Constitution, already stated; although it may 
be observed that the right to vote for a member of congress is not 
derived exclusively from the state law. See Const. U. S. art. 1, 
§ 2; Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17, 45 L. Ed. 84. 
But the elector must be one entitled to vote under the state stat¬ 
ute. Id., Id. See, also, Swafford v. Templeton, 185 U. S. 487, 491, 
22 Sup. Ct. 783, 46 L. Ed. 1005, 1007. In this case no question 
arises as to the right to vote for electors of President and Vice 
President, and no decision is made thereon. The question whether 
the conditions prescribed by the state might be regarded by others 
as reasonable or unreasonable is not a federal one. We do not 
wish to be understood, however, as intimating that the condition 
in this statute is unreasonable or in any way improper. 

“We are unable to see any violation of the federal Constitution 
in the provision of the state statute for the declaration of the in¬ 
tent of a person coming into the state before he can claim the 
right to be registered as a voter. The statute, so far as it provides 
conditions precedent to the exercise of the elective franchise with¬ 
in the state, by persons coming therein to reside (and that is as 
far as it is necessary to consider it in this case), is neither an un¬ 
lawful discrimination against any one in the situation of the 
plaintiff in error nor does it deny to him the equal protection of 
the laws, nor is it repugnant to' any fundamental or inalienable 
rights of citizens of the United States, nor a violation of any im¬ 
plied guaranties of the federal Constitution. The right of a state 
to legislate upon the subject of the elective franchise as to it may 
seem good, subject to the conditions already stated, being, as we 
believe, unassailable, we think it plain that the statute in question 
violates no right protected by the federal Constitution. 

“The reasons which may have impelled the state legislature to 
enact the statute in question were matters entirely for its consid¬ 
eration, and this court has no concern with them. 

“It is unnecessary in this case to assert that under no conceiv¬ 
able state of facts could a state statute in regard to voting be re¬ 
garded as an infringement upon or a discrimination against, the 
individual rights of a citizen of the United States removing into 
the state, and excluded from voting therein by state legislation. 
The question might arise if an exclusion from the privilege of vot¬ 
ing were founded upon the particular state from which the person 
came, excluding from that privilege, for instance, a citizen of the 


POLITICAL AND PUBLIC RIGHTS 


437 


United States coming from Georgia and allowing it to a citizen 
of the United States coming from New York or any other state. 
In such case an argument might be urged that, under the four¬ 
teenth amendment of the federal Constitution, the citizen from 
Georgia was, by the state statute, deprived of the equal protection 
of the laws. Other extreme cases might be suggested. We iiei-' 
ther assert nor deny that, in the case supposed, the claim would 
be well founded that a federal right of a citizen of the United 
States was violated by such legislation, for the question does not 
arise herein. ^ ^ 

Judgment affirmed. 


438 


EX POST FACTO LAWS 


EX POST FACTO LAWS' 


THOMPSON V. MISSOURI. 

(Supreme Court of United States, 1898. 171 U. S. 380, 18 Sup. Ct. 922, 43 L. 

Ed. 204.) 

[Error to Supreme Court of Missouri. Thompson was indicted 
for murder in 1894, the evidence against him being wholly circum¬ 
stantial. One issue of fact concerned the authorship of a prescrip¬ 
tion for strychnine and of a letter addressed to a church organist. 
Thompson denied that he had written either, and at the first trial 
certain letters written by him to his wife were admitted in evi¬ 
dence for comparison with the writing in the other documents. 
Thompson was convicted, but a new trial was ordered on appeal; 
the Missouri Supreme Court holding that the letters to his wife 
were erroneously admitted in evidence. Subsequently, in 1895, the 
legislature passed an act permitting such a comparison to be made. 
At the second trial in 1896 the letters were again used in evidence, 
Thompson was again convicted, and the conviction affirmed on 
appeal.] 

Mr. Justice Harlan. ^ * q'he contention of the accused is 

that, as the letters to his wife were not, at the time of the commis¬ 
sion of the alleged offense, admissible in evidence for the purpose 
of comparing them with other writings charged to be in his hand¬ 
writing, the subsequent statute of Missouri changing this rule of 
evidence was ex post facto when applied to his case. 

It is not to be denied that the position of the accused finds ap¬ 
parent support in the general language used in some opinions. 
Mr. Justice Chase, in his classification of ex post facto laws in 
Calder v. Bull, 3 Dali. 386, 390, 1 L. Ed. 648, includes “every law 
that alters the legal rules of evidence, and receives less or different 
testimony than the law required at the time of the commission of 
the offense in order to convict the offender.” 

In Kring v. Missouri, 107 U. S. 221, 228, 232, 235, 2 Sup. Ct. 
443, 27 L. Ed. 506, the question arose as to the validity of a stat¬ 
ute of Missouri under which the accused was found guilty of the 
crime of murder in the first degree, and sentenced to be hanged. 
That case was tried several times, and was three times in the su¬ 
preme court of the state. At the trial immediately preceding the 
last one Kring was allowed to plead guilty of murder in the sec¬ 
ond degree. The plea was accepted, and he was sentenced to im- 

1 For discussion of principles, see Black, Const. Law (3d Ed.) § 273. 



EX POST FACTO LAWS 


439 


prisonment in the penitentiary for the term of 25 years. Having 
understood that upon this plea he was to be sentenced to impris¬ 
onment for only 10 years, he prosecuted an appeal, which resulted 
in a reversal of the judgment. At the last trial the court set aside 
the plea of guilty of murder in the second degree,—the accused 
having refused to withdraw it,—and, against his objection, ordered 
a plea of not guilty to be entered in his behalf. Under the latter 
plea he was tried, convicted, and sentenced to be hanged. By the 
law of Missouri at the time of the commission of Kring’s offense, 
his conviction and sentence under the plea of guilty of murder in 
the second degree was an absolute acquittal of the charge of mur¬ 
der in the first degree. But, that law having been changed before 
the final trial occurred^ Kring contended that the last statute, if 
applied to his case, would be within the prohibition of ex post 
facto laws. And that view was sustained by this court, four of its 
members dissenting. * * * 

Considering the suggestion that the Missouri statute under which 
Kring was convicted only regulated procedure, Mr. Justice Miller, 
speaking for this court, said: “Can any substantial right which 
the law gave the defendant at the time to which his guilt relates 
be taken away from him by ex post facto legislation, because, in 
the use of a modern phrase, it is called a law of procedure? We 
think it cannot.’’ In conclusion it was said: “Tested by these 
criteria, the provision of the Constitution of Missouri which de¬ 
nies to plaintiff in error the benefit which the previous law gave 
him of acquittal of the charge of murder in the first degree, on 
conviction of murder in the second degree, is, as to his case, an ex 
post facto law within the meaning of the Constitution of the United 
States.” * 

The right to such protection was deemed a substantial one,— 
indeed, it constituted a complete defense against the charge of 
murder in the first degree,—that could not be taken from the ac¬ 
cused by subsequent legislation. This is clear from the statement 
in Kring’s Case that the question before the court was whether 
the statute of Missouri deprived “the defendant of any right of de¬ 
fense which the law gave him when the act was committed, so 
that, as to that offense, it is ex post facto.” 

This general subject was considered in Hopt v. Utah, 110 U. S. 
574, 588, 589, 4 Sup. Ct. 202, 28 L. Ed. 262. Hopt was indicted, 
tried, and convicted of murder in the territory of Utah, the punish¬ 
ment therefor being death. At the time of the commission of the 
offense it was the law of Utah that no person convicted of a felony 

2 The law was changed before the first plea of guilty of murder in the sec¬ 
ond degree was made. See Kring v. Missouri, 107 U. S. 236-239, 2 Sup. Ct. 
443, 27 L. Ed. 506. Even under the original law the defendant had no right 
to make this plea, except with the consent of the prosecution. Id. 


440 


EX POST FACTO LAWS 


could be a witness in a criminal case. After the date of the al¬ 
leged offense, and prior to the trial of the case, an act was passed 
removing the disqualification as witnesses of persons who had 
been convicted of felonies; and the point was made that the stat¬ 
ute, in its application to Hopt’s Case, was ex post facto. 

This court said: “The provision of the Constitution which pro¬ 
hibits the states from passing ex post facto laws was examined in 
Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506. 
* * That decision proceeded upon the ground that the state 

Constitution deprived the accused of a substantial right w^hich the 
law gave him when the offense was committed, and therefore, in 
its application to that offense and its consequences, altered the 
situation of the party to his disadvantage. By the law as estab¬ 
lished when the offense was committed, Kring could not have been 
punished with death after his conviction of murder in the second 
degree, whereas by the abrogation of that law by the constitutional 
provision subsequently adopted he could thereafter be tried and 
convicted of murder in the first degree, and subjected to the pun¬ 
ishment of death. Thus the judgment of conviction of murder in 
the second degree was deprived of all force as evidence to estab¬ 
lish his absolute immunity thereafter from punishment for murder 
in the first degree. This was held to be the deprivation of a sub¬ 
stantial right which the accused had at the time the alleged oft'ense 
was committed. But there are no such features in the case before 
us. Statutes which simply enlarge the class of persons who may 
be competent to testify in criminal cases are not ex post facto in 
their application to prosecutions for crimes committed prior to 
their passage, for they do not attach criminality to any act pre¬ 
viously done, and which was innocent when done, nor aggravate 
any crime theretofore committed, nor provide a greater punish¬ 
ment therefor than was prescribed at the time of its commission, 
nor do they alter the degree or lessen the amount or measure of 
the proof which was made necessary to conviction when the crime 
was committed.” 

The court added: “The crime for which the present defendant 
was indicted, the punishment prescribed therefor, and the quantity 
or the degree of proof necessary to establish his guilt, all remained 
unaffected by the subsequent statute. Any statutory alteration of 
the legal rules of evidence which would authorize conviction upon 
less proof, in amount or degree, than was required when the 
offense was committed, might, in respect of that offense, be ob¬ 
noxious to the constitutional inhibition upon ex post facto laws. 
But alterations which do not increase the punishment, nor change 
the ingredients of the offense, or the ultimate facts necessary to 
establish guilt, but, leaving untouched the nature of the crime, and 
the amount or degree of proof essential to conviction, only remove 


EX POST FACTO LAWS 


441 


existing’ restrictions upon the competency of certain classes of per¬ 
sons as witnesses, relate to modes of procedure only, in which no 
one can be said to have a vested right, and which the state, upon 
grounds of public policy, may regulate at pleasure. Such regula¬ 
tions of the mode in which the facts constituting guilt may be 
placed before the jury can be made applicable to prosecutions or 
trials thereafter had, without reference to the date of the commis¬ 
sion of the offense charged.:|t :|t * 

Applying the principles announced in former cases, without at¬ 
taching undue weight to general expressions in them that go be¬ 
yond the questions necessary to be determined, we adjudge that 
the statute of Missouri relating to the comparison of writings is 
not ex post facto when applied to prosecutions for crimes com¬ 
mitted prior to its passage. If persons excluded upon grounds of 
public policy at the time of the commission of an offense, from tes¬ 
tifying as witnesses for or against the accused, may, in virtue of a 
statute, become competent to testify, we cannot perceive any 
ground upon which to hold a statute to be ex post facto which 
does nothing more than admit evidence of a particular kind in a 
criminal case upon an issue of fact which was not admissible under 
the rules of evidence as enforced by judicial decisions at the time 
the offense was committed. The Missouri statute, when applied 
to this case, did not enlarge the punishment to which the accused 
was liable when his crime was committed, nor make any act in¬ 
volved in his offense criminal that was not criminal at the time 
he committed the murder of which he was found guilty. It did not 
change the quality or degree of his offense. Nor can the new 
rule introduced by it be characterized as unreasonable; certainly 
not so unreasonable as materially to affect the substantial rights 
of one put on trial for crime. 

The statute did not require “less proof, in amount or degree,’’' 
than was required at the time of the commission of the crime 
charged upon him. It left unimpaired the right of the jury to de¬ 
termine the sufficiency or effect of the evidence declared to be 
admissible, and did not disturb the fundamental rule that the state, 
as a condition of its right to take the life of ah accused, must over¬ 
come the presumption of his innocence, and establish his guilt be¬ 
yond a reasonable doubt. Whether he wrote the prescription for 
strychnine, or the threatening letter to the church organist, was 
left for the jury; and the duty of the jury, in that particular, was 
the same after as before the passage of the statute. The statute 
did nothing more than remove an obstacle arising out of a rule 
of evidence that withdrew from the consideration of the jury tes¬ 
timony which, in the opinion of the legislature, tended to elucidate 
th« ultimate, essential fact to be established, namely, the guilt of 


442 


EX POST FACTO LAWS 


the accused. Nor did it give the prosecution any right that was 
denied to the accused. It placed the state and the accused upon an 
equality, for the rule established by it gave to each side the right 
to have disputed writings compared with writings proved to the 
satisfaction of the judge to be genuine. Each side was entitled to 
go to the jury upon the question of the genuineness of the writing 
upon which the prosecution relied to establish the guilt of the 
accused. It is well known that the adjudged cases have not been 
in harmony touching the rule relating to the comparison of hand¬ 
writings, and the object of the legislature, as we may assume, was 
to give the jury all the light that could be thrown upon an issue 
of that character. We cannot adjudge that the accused had any 
vested right in the rule of evidence which obtained prior to the 
passage of the Missouri statute, nor that the rule established by 
that statute entrenched upon any of the essential rights belonging 
to one put on trial for a public offense. 

Of course, we are not to be understood as holding that there 
may not be such a statutory alteration of the fundamental rules 
in criminal trials as might bring the statute in conflict with the ex 
post facto clause of the Constitution. If, for instance, the statute 
had taken from the jury the right to determine the sufficiency or 
effect of the evidence which it made admissible, a different ques¬ 
tion would have been presented. We mean now only to adjudge 
that the statute is to be regarded as one merely regulating pro¬ 
cedure, and may be applied to crimes committed prior to its 
passage without impairing the substantial guaranties of life and 
liberty that are secured to an accused by the supreme law of the 
land. 

Judgment affirmed 


HAWKER V. NEW YORK. 

(Supreme Court of United States, 1898. 170 U. S. 189, 18 Sup. Ct. 573 42 L 

Ed. 1002.) 

[Error to the Court of Sessions of New York City. The de¬ 
fendant had been convicted of the crime of abortion in New York 
in 1878 and sentenced to ten years imprisonment. A New York 
statute of 1893, amended in 1895, made it a misdemeanor for any 
person to practice medicine after conviction of a felony. The de¬ 
fendant was convicted under this statute and the conviction af¬ 
firmed by the highest state court; final judgment being entered in 
the said Court of Sessions.] 

Mr. Justice Bre:we:r. The single question presented is as to the 
constitutionality of this statute when applied to one who had been 
convicted of a felony prior to its enactment. * * ^ 



EX POST FACTO LAWS 


443 


On the one hand, it is said that defendant was tried, convicted, 
and sentenced for a criminal offense. He suffered the punishment 
pronounced. The legislature has no power to thereafter add to 
that punishment. The right to practice medicine is a valuable 
property right. To deprive a man of it is in the nature of punish¬ 
ment, and, after the defendant has once fully atoned for his of¬ 
fense, a statute imposing this additional penalty is one simply in¬ 
creasing the punishment for the offense, and is ex post facto. 

On the other, it is insisted that, within the acknowledged reach 
of the police power, a state may prescribe the qualifications of 
one engaged in any business so directly affecting the lives and 
health of the people as the practice of medicine. It may require 
both qualifications of learning and of good character, and, if it 
deems that one who has violated the criminal laws of the state is 
not possessed of sufficient good character, it can deny to such a 
one the right to practice medicine; and, further, it may make the 
record of a conviction conclusive evidence of the fact of the vio¬ 
lation of the criminal law, and of the absence of the requisite good 
character. In support of this latter argument, counsel for the 
state, besides referring to the legislation of many states prescrib¬ 
ing in a general way good character as one of the qualifications of 
a physician, has made a collection of special provisions as to the 
effect of a conviction of felony. In the footnote ® will be found 
his collection. 

We are of opinion that this argument is the more applicable, 
and must control the answer to this question. No precise limits 
have been placed upon the police power of a state, and yet it is 
clear that legislation which simply defines the qualifications of 
one who attempts to practice medicine is a proper exercise of that 
power. Care for the public health is something confessedly be¬ 
longing to the domain of that power. The physician is one whose 
relations to life and health are of the most intimate character. It 
is fitting, not merely that he should possess a knowledge of diseas¬ 
es and their remedies, but also that he should be one who may 
safely be trusted to apply those remedies. Character is as im¬ 
portant a qualification as knowledge, and it the legislature may 
properly require a definite course of instruction, or a certain ex¬ 
amination as to learning, it may with equal propriety prescribe 
what evidence of good character shall be furnished. These prop¬ 
ositions have been often affirmed. In Dent v. West Virginia, 129 
U. S. 114, 122, 9 Sup. Ct. 231, 233, 32 L. Ed. 623, it was said in 
respect to the qualifications of a physician: “The power of the 

3 This collection of statutes (Hawker v. New York, 170 U. S. 191-193, 18 
Sup. Ct. 574, 575, 42 L. Ed. 1004, 1005) shows that six or seven American 
states, Great Britain, and a number of self-governing British colonies give a 
similar effect to a conviction of felony. 


444 


EX POST FACTO LAWS 


State to provide for the general welfare of its people authorizes it 
to prescribe all such regulations as, in its judgment, will secure or 
tend to secure them against the consequences of ignorance and 
incapacity as well as of deception and fraud/^ ^ ^ ^ [Here fol¬ 
low quotations from various state decisions holding that a good 
moral character may be required as a condition of the right to 
practice medicine.] 

But if a state may require good character as a condition of the 
practice of medicine, it may rightfully determine what shall be the 
evidences of that character. We do not mean to say that it has 
an arbitrary power in the matter, or that it can make a conclusive 
test of that which has no relation to character, but it may take 
whatever, according to the experience of mankind, reasonably 
tends to prove the fact and make it a test. County Seat of Linn 
Co., 15 Kan. 5(30-528. Whatever is ordinarily connected with bad 
character, or indicative of it, may be prescribed by the legislature 
as conclusive evidence thereof. It is not the province of the courts 
to say that other tests would be more satisfactory, or that the 
naming of other qualifications would be more conducive to the 
desired result. These are questions for the legislature to deter¬ 
mine. ^‘The nature and extent of the qualifications required must 
depend primarily upon the judgment of the state as to their neces¬ 
sity.’’ Dent V. West Virginia, 129 U. S. 122, 9 Sup. Ct. 233, 32 L. 
Ed. 623. 

It is not open to doubt that the commission of crime—the viola¬ 
tion of the penal laws of a state—has some relation to the ques¬ 
tion of character. It is not, as a rule, the good people who com¬ 
mit crime. When the legislature declares that whoever has violat¬ 
ed the criminal laws of the state shall be deemed lacking in good 
moral character, it is not laying down an arbitrary or fanciful rule, 
one having no relation to the subject-matter, but is only appealing 
to a well-recognized fact of human experience; and, if it may make 
a violation of criminal law a test of bad character; what more con¬ 
clusive evidence of the fact of such violation can there be than a 
conviction duly had in one of the courts of the state? The con¬ 
viction is, as between the state and the defendant, an adjudication 
of the fact. So, if the legislature enacts that one who has been 
convicted of crime shall no longer engage in the practice of med¬ 
icine, it is simply applying the doctrine of res judicata, and invok¬ 
ing the conclusive adjudication of the fact that the man has vio¬ 
lated the criminal law, and is presumptively, therefore, a man of 
such bad character as to render it unsafe to trust the lives and 
health of citizens to his care. 

That the form in which this legislation is cast suggests the idea 
of the imposition of an additional punishment for past offenses is 


EX POST FACTO LAWS 


445 


not conclusive. We must look at the substance, and not the form; 
and the statute should be regarded as though it in terms declared 
that one who had violated the criminal laws of the state should 
be deemed of such bad character as to be unfit to practice med¬ 
icine, and that the record of a trial and conviction should be con¬ 
clusive evidence of such violation. All that is embraced in these 
propositions is condensed into the single clause of the statute, and 
it means that, and nothing more. The state is not seeking to further 
punish a criminal, but only to protect its citizens from physicians 
of bad character. The vital matter is not the conviction, but the 
violation of law. The former is merely the prescribed evidence of 
the latter. Suppose the statute had contained only a clause de¬ 
claring that no one should be permitted to act as a physician who 
had violated the criminal laws of the state, leaving the question 
of violation to be determined according to the ordinary rules of 
evidence; would it not seem strange to hold that that which con¬ 
clusively established the fact efifectually relieved from the conse¬ 
quences of such violation? 

It is no answer to say that this test of character is not in all 
cases absolutely certain, and that sometimes it works harshly. 
Doubtless, one who has violated the criminal law may thereafter 
reform, and become in fact possessed of a good moral character. 
But the legislature has power in cases of this kind to make a rule 
of universal application, and no inquiry is permissible back of the 
rule to ascertain whether the fact of which the rule is made the 
absolute test does or does not exist. Illustrations of this are 
abundant. At common law, one convicted of crime was incompe¬ 
tent as a witness; and this rule was in no manner affected by the 
lapse of time since the commission of the offense, and could not 
be set aside by proof of a complete reformation. So, in many 
states a convict is debarred the privileges of an elector, and an act 
so debarring was held applicable to one convicted before its pas¬ 
sage. Washington v. State, 75 Ala. 582, 51 Am. Rep. 479. In 
Foster v. Commissioners, 102 Cal. 483, 492, 37 Pac. 763, 41 Am. 
St. Rep. 194, the question was as to the validity of an ordinance 
revoking a license to sell liquor on the ground of misconduct prior 
to the issue of the license, and the ordinance was sustained. In 
commenting upon the terms of the ordinance the court said: 
“Though not an ex post facto law, it is retrospective in so far as 
it determines from the past conduct of the party his fitness for the 
proposed business. Felons are also excluded from obtaining such 
a license, not as an additional punishment, but because the convic¬ 
tion of a felony is evidence of the unfitness of such persons as a 
class; nor can we perceive why such evidence should be more con¬ 
clusive of unfitness were the act done after the passage of the ordi¬ 
nance than if done before.** 


446 


EX POST FACTO LAWS 


In a certain sense such a rule is arbitrary, but it is within the 
power of a legislature to perscribe a rule of general application 
based upon a state of things which is ordinarily evidence of the 
ultimate fact sought to be established. “It was obviously the 
province of the state legislature to provide the nature and extent 
of the legal presumption to be deduced from a given state of facts, 
and the creation by law of such presumptions is, after all, but an 
illustration of the power to classify.” Jones v. Brim, 165 U. S. 
180, 183, 17 Sup. Ct. 282, 41 L. Ed. 677. ♦ 

Judgment affirmed. 

[Harlan, J., gave a dissenting opinion, in which concurred Peck- 
ham and McKenna, JJ.] 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


447 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS " 


NEW ORLEANS WATERWORKS CO. v. LOUISIANA SU¬ 
GAR REFINING CO. 

(Supreme Court of United States, 1888. 125 U. S. 18, 8 Sup. Ct. 741, 31 L. 

Ed. 607.) 

[Error to the Supreme Court of Louisiana, which had affirmed a 
judgment of the civil district court of New Orleans in favor of 
the Louisiana Sugar Company, denying an injunction against lay¬ 
ing water pipes asked by the plaintiff. The facts appear in the 
opinion.] 

Mr. Justice Gray. The plaintiff, in its original petition, relied on 
a charter from the legislature of Louisiana, which granted to it 
the exclusive privilege of supplying the city of New Orleans and 
its inhabitants with water from the Mississippi river, but provided 
that the city council should not be thereby prevented from grant¬ 
ing to any person “contiguous to the river” the privilege of laying 
pipes to the river for his own use. The only matter complained 
of by the plaintiff, as impairing the obligation of the contract 
contained in its charter, was an ordinance of the city council, 
granting to the Louisiana Sugar Refining Company permission to 
lay pipes from the river to its factory, which, the plaintiff con¬ 
tended, was not contiguous to the river. The Louisiana Sugar Re¬ 
fining Company, in its answer, alleged that its factory was contigu¬ 
ous to the river; that it had the right as a riparian proprietor to 
draw water from the river for its own use; that its pipes were 
being laid for its own use only; that the plaintiff had no exclu¬ 
sive privilege that would impair such use of the water by the de¬ 
fendant company; and that the rights and privileges claimed by 
the plaintiff would constitute a monopoly, and be therefore null and 
void. The evidence showed that the pipes of* the defendant com¬ 
pany were being laid exclusively for the use of its factory, and that 
no private ownership intervened between it and the river, but 
only a public street, and a broad quay or levee, owned by the city 
and open to the public, except that some large sugar sheds, occu¬ 
pied by lessees of the city, stood upon it, and that the tracks of 
a railroad were laid across it. * * 

The only grounds on which the plaintiff in error attacks the 
judgment of the state court are that the court erred in its construc¬ 
tion of the contract between the state and the plaintiff, contained 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 279-294. 



448 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


in the plaintiff’s charter; and in not adjudging that the ordinance 
of the city counsel, granting to the defendant company permission 
to lay pipes from its factory to the river, was void, because it 
impaired the obligation of that contract. * * * 

This being a writ of error to the highest court of a state, a fed¬ 
eral question must have been decided by that court against the 
plaintiff in error; else this court has no jurisdiction to review the 
judgment. ^ * 

In order to come within the provision of the Constitution of the 
United States which declares that no state shall pass any law im¬ 
pairing the obligation of contracts, not only must the obligation of 
a contract have been impaired, but it must have been impaired by a 
law of the state. The prohibition is aimed at the legislative power 
of the state, and not at the decisions of its courts, or the acts of ad¬ 
ministrative or executive boards or officers, or the doings of corpo¬ 
rations or individuals. This court, therefore, has no jurisdiction to 
review a judgment of the highest court of a state, on the ground 
that the obligation of a contract has been impaired, unless some 
legislative act of the state has been upheld by the judgment sought 
to be reviewed. The general rule, as applied to this class of cases, 
has been clearly stated in two opinions of this court, delivered by 
Mr. Justice Miller: ‘Tt must be the Constitution or some law of 
the state which impairs the obligation of the contract, or which is 
otherwise in conflict with the Constitution of the United States; 
and the decision of the state court must sustain the law or Consti¬ 
tution of the state, in the matter in which the conflict is supposed 
to exist; or the case for this court does not arise.” Railroad Co. v. 
Rock, 4 Wall. 177, 181, 18 L. Ed. 381. ‘‘We are not authorized by 
the judiciary act to review the judgments of the state courts, be¬ 
cause their judgments refuse to give effect to valid contracts, or be¬ 
cause those judgments, in their effect, impair the obligation of con¬ 
tracts. If we did, every case decided in a state court could be 
brought here, where the party setting up a contract alleged that the 
court had taken a different view of its obligation to that which he 
held.” Knox v. Bank, 12 Wall. 379, 383, 20 L. Ed. 287. 

As later decisions have shown, it is not strictly and literally true 
that a law of a state, in order to come within the constitutional 
prohibition, must be either in the form of a statute enacted by 
the legislature in the ordinary course of legislation, or in the form 
of a Constitution established by the people of the state as their 
fundamental law. In Williams v. Bruffy, 96 U. S. 176, 183, 24 
L. Ed. 716, it was said by Mr. Justice Field, delivering judgment: 
“Any enactment, from whatever source originating, to which a 
state gives the force of law, is a statute of the state, within the 
meaning of the clause cited relating to the jurisdiction of this 
court,” (Rev. St. § 709;) and it was therefore held that a statute of 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


449 


the so-called Confederate States, if enforced by one of the states 
as its law, was within the prohibition of the Constitution. So a 
by-law or ordinance of a municipal corporation may be such an 
exercise of legislative power delegated by the legislature to the 
corporation as a political subdivision of the state, having all the 
force of law within the limits of the municipality, that it may 
properly be considered as a law, within the meaning of this article 
of the Constitution of the United States. For instance, the power 
of determining what persons and property shall be taxed belongs 
exclusively to the legislative branch of the government, and, 
whether exercised by the legislature itself, or delegated by it to 
a municipal corporation, is strictly a legislative power. U. S. v. 
New Orleans, 98 U. S. 381, 392, 25 L. Ed. 225; Meriwether v. Gar¬ 
rett, 102 U. S. 472, 26 E. Ed. 197. * * * 

But the ordinance now in question involved no exercise of legis¬ 
lative power. The legislature, in the charter granted to the plain¬ 
tiff, provided that nothing therein should “be so construed as to 
prevent the city council from granting to any person or persons, 
contiguous to the river, the privilege of laying pipes to the river, 
exclusively for his or their own use.” The legislature itself thus 
defined the class of persons to whom, and the object for which, the 
permission might be granted. All that was left to the city council 
was the duty of determining what persons came within the defini^ 
tion, and how and where they might be permitted to lay pipes, for 
the purpose of securing their several rights to draw water from the 
river, without unreasonably interfering with the convenient use by 
the public of the lands and highways of the city. The rule was es¬ 
tablished by the legislature, and its execution only committed to 
the municipal authorities. The power conferred upon the city 
council was not legislative, but administrative, and might equally 
well have been vested by law in the mayor alone, or in any other 
officer of the city. Railroad Co. v. Ellerman, 105 U. S. 166, 172, 
26 L. Ed. 1015; Day v. Green, 4 Cush. (Mass.) 433, 438. The per¬ 
mission granted by the city council to the defendant company, 
though put in the form of an ordinance, was in effect but a 
license, and not a by-law of the city, still less a law of the state. 
If that license was within the authority vested in the city council 
by the law of Louisiana, it was valid; if it transcended that au¬ 
thority, it was illegal and void. But the question whether it 
was lawful or unlawful depended wholly on the law of the state, 
and not at all on any provision of the Constitution or laws of the 
United States. * * * 

[After discussing various cases:] These cases are quite in har¬ 
mony with the line of cases, beginning before these were decided, 
in which, on a writ of error upon a judgment of the highest court 
Hall Cases Const.L.— 29 


450 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


of a state, giving effect to a statute of the state, drawn in ques¬ 
tion as affecting the obligation of a previous contract, this court, 
exercising its paramount authority of determining whether the 
statute upheld by the state court did impair the obligation of the 
previous contract, is not concluded by the opinion of the state court 
as to the validity or the construction of that contract, even if con¬ 
tained in a statute of the state, but determines for itself what 
that contract was. Leading cases of that class are Bridge Propr’s 
V. Hoboken Co., 1 Wall. 116, 17 L. Ed. 571, in which the state 
court affirmed the validity of a statute authorizing a railway via¬ 
duct to be built across a river, which was drawn in question as 
impairing the obligation of a contract, previously made by the 
state with the proprietors of a bridge, that no other bridge should 
be built across the river; and cases in which the state court af¬ 
firmed the validity of a statute, imposing taxes upon a corporation, 
and drawn in question as impairing the obligation of a contract 
in a previous statute exempting it from such taxation. Bank v. 
Knoop, 16 How. 369, 14 L. Ed. 977; Trust Co. v. Debolt, Id. 416, 
14 E. Ed. 997; Bank v. Debolt, 18 How. 380, 15 E. Ed. 458; Bank 
V. Skelly, 1 Black, 436, 17 E. Ed. 173; New Jersey v. Yard, 95 
U. S. 104, 24 E. Ed. 352; Railroad v. Gaines, 97 U. S. 697, 709, 24 
E. Ed. 1091; University v. People, 99 U. S. 309, 25 E. Ed. 387; 
Railroad v. Palmes, 109 U. S. 244, 3 Sup. Ct. 193, 27 E. Ed. 922 ; 
Gas-Eight Co. V. Shelby Co., 109 U. S. 398, 3 Sup. Ct. 205; Rail¬ 
road Co. V. Dennis, 116 U. S. 665, 6 Sup. Ct. 625, 29 E. Ed. 770. 
In each of those cases, the state court upheld a right claimed under 
the later statute, and could not have made the decision that it did 
without upholding that right; and thus gave effect to the law of 
the state drawn in question as impairing the obligation of a con¬ 
tract. The distinction between the two classes of cases,—those 
in which the state court has, and those in which it has not, given 
effect to the statute drawn in question as impairing the obligation 
of a contract,—as affecting the consideration by this court, on 
writ of error, of the true construction and effect of the previous 
contract, is clearly brought out in Railroad v. Railroad, 14 Wall. 
23, 20 E. Ed. 850. That was a writ of error to the supreme judi¬ 
cial court of Maine, in which a foreclosure, under a statute of 1857, 
of a railroad mortgage made in 1852, was contested upon the 
ground that it impaired the obligation of the contract, and the 
parties agreed that the opinion of that court should be considered 
as part of the record. Mr. Justice Miller, in delivering judgment, 
after stating that it did appear that the question whether the stat¬ 
ute of 1857 impaired the obligation of the mortgage contract “was 
discussed in the opinion of the court, and that the court was of 
the opinion that the statute did not impair the obligation of the 
contract,” said: “If this were all of the case, we should undoubt- 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 451 

edly be bound in this court to inquire whether the act of 1857 did, 
as construed by that court, impair the obligation of the contract. 
Bridge Propr’s v. Hoboken Co., 1 Wall. 116, 17 L. Ed. 571. But 
a full examination of the opinion of the court shows that its judg¬ 
ment was based upon the ground that the foreclosure was valid, 
without reference to the statute of 1857, because the method pur¬ 
sued was in strict conformity to the mode of foreclosure author¬ 
ized, when the contract was made by the laws then in existence. 
Now, if the state court was right in their view of the law as it 
stood when the contract was made, it is obvious that the mere fact 
that a new law was made does not impair the obligation of the 
contract. And it is also clear that we cannot inquire whether the 
supreme judicial court of Maine was right in that opinion. Here 
is, therefore, a clear case of a sufficient ground on which the va¬ 
lidity of the decree of the state court could rest, even if it had been 
in error as to the effect of the act of 1857 in impairing the obliga¬ 
tion of the contract. And when there is such distinct and sufficient 
ground for the support of the judgment of the state court, we 
cannot take jurisdiction, because we could not reverse the case, 
though the federal question was decided erroneously in the court 
below against the plaintiff in error. Rector v. Ashley, 6 Wall. 142, 
18 L. Ed. 733; Klinger v. Missouri, 13 Wall. 257, 20 L. Ed. 635; 
Steines v. Franklin County, 14 Wall. 15, 20 E. Ed. 846. The writ 
of error must therefore be dismissed for want of jurisdiction.” 
Id. 25, 26. 

The result of the authorities, applying to cases of contracts the 
settled rules that in order to give this court jurisdiction of a writ 
of error to a state court, a federal question must have been, ex¬ 
pressly or in effect, decided by that court, and, therefore, that 
when the record shows that a federal question and another ques¬ 
tion were presented to that court and its decision turned on the 
other question only, this court has no jurisdiction, may be summed 
up as follows: When the state court decides against a right claim¬ 
ed under a contract, and there was no law subsequent to the con¬ 
tract, this court clearly has no jurisdiction. When the existence 
and the construction of a contract are undisputed, and the state 
court upholds a subsequent law, on the ground that it did not 
impair the obligation of the admitted contract, it is equally clear 
that this court has jurisdiction. When the state court holds that 
there was a contract conferring certain rights, and that a subse¬ 
quent law did not impair those rights, this court has jurisdiction 
to consider the true construction of the supposed contract; and, 
if it is of opinion that it did not confer the rights affirmed by the 
state court, and therefore its obligation was not impaired by the 
subsequent law, may on that ground affirm the judgment. So, 
when the state court upholds the subsequent law, on the ground 


452 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


that the contract did not confer the right claimed, this court may 
inquire whether the supposed contract did give the right, because, 
if it did, the subsequent law cannot be upheld. But when the state 
court gives no effect to the subsequent law, but decides, on 
grounds independent of that law, that the right claimed was not 
conferred by the contract, the case stands just as if the subsequent 
law had not been passed, and this court has no jurisdiction. In 
the present case, the supreme court of Louisiana did not, and the 
plaintiff in error does not pretend that it did, give any effect to 
the provision of the Constitution of 1879 abolishing monopolies. 
Its judgment was based wholly upon the general law of the state, 
and upon the construction and effect of the charter from the legis¬ 
lature to the plaintiff company, and of the license from the city 
council to the defendant company, and in no degree upon the Con¬ 
stitution or any law of the state subsequent to the plaintiff’s 
charter. * * * 

Case dismissed for want of jurisdiction. 


OGDEN V. SAUNDERS. 

(Supreme Court of United States, 1827. 12 Wheat. 213, 6 L. Ed. 606.) 

[Error to the United States District Court for Louisiana. Og¬ 
den, then a citizen of New York, accepted in that state certain 
bills of exchange drawn upon him in 1806 in Kentucky, of which 
Saunders became the owner. Ogden later became a citizen of 
Louisiana, and was there sued in assumpsit by Saunders upon the 
bills, in the above-named court. One of Ogden’s pleas was a dis¬ 
charge in bankruptcy in New York, under an act passed there in 
1801. On a special verdict finding those facts, the plaintiff re¬ 
ceived judgment, and Odgen took this writ of error. Saunders 
was a citizen of Kentucky. Several somewhat similar cases were 
argued at the same time.] 

Mr. Justice Washington. * * * What is it, then, which 
constitutes the obligation of a contract? The answer is given by 
the Chief Justice, in the case of Sturges v. Crowninshield,^ to 
which I readily assent now, as I did then; it is the law which 
binds the parties to perform their agreement. The law, then, which 
has this binding obligation, must govern and control the contract 
in every shape in which it is intended to bear upon it, whether 
it affect its validity, construction, or discharge. 

But the question, which law is referred to in the above defini¬ 
tion, still remains to be solved. It cannot, for a moment, be con- 

2 4 Wheat. 117, 4 L. E,d. 529 (1819), holding invalid all discharges of debtors 
by insolvency or bankruptcy laws passed subsequently to the making of the 
contracts affected thereby. 



LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 453 

ceded that the mere moral law is intended, since the obligation 
which that imposes is altogether of the imperfect kind which the 
parties to it are free to obey or not, as they please. It cannot be 
supposed that it was with this law the grave authors of this instru¬ 
ment were dealing. 

The universal law of all civilized nations, which declares that 
men shall perform that to which they have agreed, has been sup¬ 
posed by the counsel who have argued this cause for the defend¬ 
ant in error, to be the law which is alluded to; and I have no 
objection to acknowledging its obligation, whilst I must deny that 
it is that which exclusively governs the contract. It is upon this 
law that the obligation which nations acknowledge to perform 
their compacts with each other is founded, and I, therefore, feel 
no objection to answer the question asked by the same counsel— 
What law it is which constitutes the obligation of the compact 
between Virginia and Kentucky—by admitting, that it is this 
common law of nations which requires them to perform it. I ad¬ 
mit further that it is this law which creates the obligation of a 
contract made upon a desert spot, where no municipal law exists, 
and (which was another case put by the same counsel) which con¬ 
tract, by the tacit assent of all nations, their tribunals are au¬ 
thorized to enforce. 

But can it be seriously insisted that this, any more than the 
moral law upon which it is founded, was exclusively in the con¬ 
templation of those who framed this Constitution? What is the 
language of this universal law? It is simply that all men are 
bound to perform their contracts. The injunction is as absolute as 
the contracts to which it applies. It admits of no qualification and 
no restraint, either as to its validity, construction, or discharge, 
further than may be necessary to develop the intention of the par¬ 
ties to the contract. And if it be true that this is exclusively the 
law, to which the Constitution refers us, it is very apparent that the 
sphere of state legislation upon subjects connected with the con¬ 
tracts of individuals, would be abridged beyond what it can for 
a moment be believed the sovereign states of this Union would 
have consented to; for it will be found, upon examination, that 
there are few laws which concern the general police of a state, or 
the government of its citizens, in their intercourse with each other 
or with strangers, which may not in some way or other affect 
the contracts which they have entered into, or may thereafter 
form. For what are laws of evidence, or which concern remedies 
—frauds and perjuries—laws of registration, and those which af¬ 
fect landlord and tenant, sales at auction, acts of limitation, and 
those which limit the fees of professional men, and the charges of 
tavern-keepers, and a multitude of others which crowd the codes 
of every state, but laws which may affect the validity, construe- 


454 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


tion, or duration, or discharge of contracts? Whilst I admit, then, 
that this common law of nations, which has been mentioned, 
may form in part the obligation of a contract, I must unhesitat¬ 
ingly insist that this law is to be taken in strict subordination to 
the municipal laws of the land where the contract is made, or is 
to be executed. The former can be satisfied by nothing short of 
performance ; the latter may affect and control the validity, con¬ 
struction, evidence, remedy, performance, and discharge of the 
contract. The former is the common law of all civilized nations, 
and of each of them; the latter is the peculiar law of each, and is 
paramount to the former whenever they come in collision with 
each other. 

It is, then, the municipal law of the state, whether that be writ¬ 
ten or unwritten, which is emphatically the law of the contract 
made within the state, and must govern it throughout, wherever 
its performance is sought to be enforced. 

It forms, in my humble opinion, a part of the contract, and 
travels with it wherever the parties to it may be found. It is so 
regarded by all the civilized nations of the world, and is enforced 
by the tribunals of those nations according to its own forms, unless 
the parties to it have otherwise agreed, as where the contract is 
to be executed in, or refers to the laws of, some other country 
than that in which it is formed, or where it -is of an immoral char¬ 
acter, or contravenes the policy of the nation to whose tribunals 
the appeal is made; in which latter cases, the remedy which the 
comity of nations affords for enforcing the obligation of contracts 
wherever formed, is denied. Free from these objections, this law, 
which accompanies the contract as forming a part of it, is regarded 
and enforced everywhere, whether it affect the validity, construc¬ 
tion, or discharge of the contract. It is upon this principle of 
universal law, that the discharge of the contract, or of one of the 
parties to it, by the bankrupt laws of the country where it was 
made, operates as a discharge everywhere. 

If, then, it be true that the law of the country where the con¬ 
tract is made or to be executed, forms a part of that contract 
and of its obligation, it would seem to be somewhat of a solecism 
to say that it does, at the same time, impair that obligation. 

But it is contended that if the municipal law of the state where 
the contract is so made form a part of it, so does that clause of 
the Constitution which prohibits the states from passing laws to 
impair the obligation of contracts; and, consequently, that the law 
is rendered inoperative by force of its controlling associate. All 
this I admit, provided it be first proved that the law so incorpo¬ 
rated with and forming a part of the contract, does, in effect, im¬ 
pair its obligation; and before this can be proved, it must be af¬ 
firmed and satisfactorily made out, that if, by the terms of the 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 455 

contract, it is agreed that, on the happening of a certain event, 
as, upon the future insolvency of one of the parties, and his sur¬ 
render of all his property for the benefit of his creditors, the con¬ 
tract shall be considered as performed and at an end, this stipula¬ 
tion would impair the obligation of the contract. If this proposi¬ 
tion can be successfully affirmed, I can only say, that the sound¬ 
ness of it is beyond the reach of my mind to understand. 

Again, it is insisted that if the law of the contract forms a part 
of it, the law itself cannot be repealed without impairing the ob¬ 
ligation of the contract. This proposition I must be permitted to 
deny. It may be repealed at any time, at the will of the legislature, 
and then it ceases to form any part of those contracts which may 
afterwards be entered into. The repeal is no more void than a 
new law would be which operates upon contracts to affect their 
validity, construction, or duration. Both are valid (if the view 
which I take of this case be correct), as they may affect contracts 
afterwards formed; but neither are so, if they bear upon existing 
contracts; and, in the former case, in which the repeal contains no 
enactment, the Constitution would forbid the application of the 
repealing law to past contracts, and to those only. 

To illustrate this argument, let us take four laws, which, either 
by new enactments, or by the repeal of former laws, may affect 
contracts as to their validity, construction, evidence, or remedy. 
Laws against usury are of the first description. A law which con¬ 
verts a penalty, stipulated for by the parties, as the only atone¬ 
ment for a breach of the contract, into a mere agreement for a 
just compensation, to be measured by the legal rate of interest, 
is of the second. The statute of frauds, and the statute of limi¬ 
tations, may be cited as examples of the last two. 

The validity of these laws can never be questioned by those who 
accompany me in the view which I take of the question under con¬ 
sideration, unless they operate, by their express provisions, upon 
contracts previously entered into; and even then they are void 
only so far as they do so operate; because, in that case, and in 
that case only, do they impair the obligation of those contracts. 
But if they equally impair the obligation of contracts subsequently 
made, which they must do, if this be the operation of a bankrupt 
law upon such contracts, it would seem to follow that all such 
laws, whether in the form of new enactments, or of repealing laws, 
producing the same legal consequences, are made void by the Con¬ 
stitution; and yet the counsel for the defendants in error have 
'not ventured to maintain so alarming a proposition. 

If it be conceded that those laws are not repugnant to the Consti¬ 
tution, so far as they apply to subsequent contracts, I am yet to be 
instructed how to distinguish between those laws, and the one now 
under consideration. How has this been attempted by the learned 


456 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

counsel who have argued this cause upon the ground of such a 
distinction ? 

They have insisted that the effect of the law first supposed, is 
to annihilate the contract in its birth, or rather to prevent it from 
having a legal existence, and consequently, that there is no obliga¬ 
tion to be impaired. But this is clearly not so, since it may legiti¬ 
mately avoid all contracts afterwards entered into, which reserve 
to the lender a higher rate of interest than this law permits. 

The validity of the second law is admitted, and yet this can 
only be in its application to subsequent contracts; for it has not, 
and I think it cannot, for a moment, be maintained, that a law 
which, in express terms, varies the construction of an existing con¬ 
tract, or which, repealing a former law, is made to produce the 
same effect, does not impair the obligation of that contract. 

The statute of frauds, and the statute of limitations, which have been 
put as examples of the third and fourth classes of laws, are also 
admitted to be valid, because they merely concern the modes of 
proceeding in the trial of causes. The former, supplying a rule of 
evidence, and the latter, forming a part of the remedy given by 
the legislature to enforce the obligation, and likewise providing 
a rule of evidence. 

All this I admit. But how does it happen that these laws, like 
those which affect the validity and construction of contracts, are 
valid as to subsequent, and yet void as to prior and subsisting con¬ 
tracts? For we are informed by the learned judge who delivered 
the opinion of this court, in the case of Sturges v. Crowninshield, 
4 Wheat. 122, 4 L. Ed. 529, that, '‘if, in a state where six years 
may be pleaded in bar to an action of assumpsit, a law should pass 
declaring that contracts already in existence, not barred by the 
statute, should be construed within it, there could be little doubt 
of its unconstitutionality.” 

It is thus most apparent that, whichever way we turn, whether 
to laws affecting the validity, construction, or discharges of con¬ 
tracts, or the evidence or remedy to be employed in enforcing them, 
we are met by this overruling and admitted distinction, between 
those which operate retrospectively, and those which operate 
prospectively. In all of them the law is pronounced to be void in 
the first class of cases, and not so in the second. 

Let us stop, then, to make a more critical examination of the act 
of limitations, which although it concerns the remedy, or, if it 
must be conceded, the evidence, is yet void or otherwise, as it is 
made to apply retroactively, or prospectively, and see if it can, 
upon any intelligible principle, be distinguished from a bankrupt 
law, when applied in the same manner. What is the effect of the 
former? The answer is, to discharge the debtor and all his future 
acquisitions from his contract; because he is permitted to plead 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 45T 

it in bar of any remedy which can be instituted against him, and 
consequently in bar or destruction of the obligation which his con¬ 
tract imposed upon him. What is the effect of a discharge under 
a bankrupt law? I can answer this question in no other terms 
than those which are given to the former question. If there be a 
difference, it is one which, in the eye of justice, at least, is more 
favorable to the validity of the latter than of the former; for in 
the one, the debtor surrenders everything which he possesses to¬ 
wards the discharge of his obligation, and in the other, he surren¬ 
ders nothing, and sullenly shelters himself behind a legal objec¬ 
tion with which the law has provided him, for the purpose of pro¬ 
tecting his person, and his present as well as his future acquisi¬ 
tions, against the performance of his contract. * * ^ [Here 

follows mention of further similarities in the legal effects of the 
two laws, in that the bar of each may be waived by the debtor’s 
subsequent promise, without a new consideration, and that each 
must be pleaded by the debtor to bar the creditor’s remedy upon 
the original obligation.] 

[Johnson, Thompson, and Trimbl:^, JJ., gave concurring opin¬ 
ions ; and Marshall, C. J., gave a dissenting opinion ^ for himself 
and Duvall and Story, JJ., in the course of which he said: ‘Tf 
one law enters into all subsequent contracts, so does every other 
law which relates to the subject. A legislative act, then, declaring 
that all contracts should be subject to legislative control and 
should be discharged as the legislature might prescribe, would be¬ 
come a component part of every contract and be one of its condi¬ 
tions.” 12 Wheat. 339, 6 L. Ed. 606. The remainder of the case 
upon another point is omitted.] 


FLETCHER v. PECK. 

(Supreme Court of United States, 1810. 6 Crunch, 87, 3 L. Ed. 162.) 

[Error to the United States Circuit Court for Massachusetts. 
Fletcher brought an action of covenant in that court against Peck, 
and, upon the facts and pleadings stated in the opinion below, the 
court gave judgment for Peck upon the third count, overruling a 
demurrer to Peck’s plea thereto.] 

Mr. Chief Justice Marshall. ^ * This suit was instituted 

on several covenants contained in a deed made by John Peck, the 
defendant in error, conveying to Robert Fletcher, the plaintiff in 
error, certain lands w^hich were part of a large purchase made by 
James Gunn and others, in the year 1795, from the state of Georgia, 

3 This is Chief Justice Marshall’s only dissenting opinion upon a constitu¬ 
tional question. In the 34 years he was upon the bench he wrote 519 out of 
the 1,106 opinions delivered in the court. He dissented altogether but 8 times. 
Carson, Sup. Ct. of U. S., 206, note. 



458 LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 

the contract for which was made in the form of a bill passed by the 
legislature of that state. * * * 

The fourth covenant in the deed is, that the title to the premises 
has been in no way constitutionally or legally impaired by virtue of 
any subsequent act of any subsequent legislature of the state of 
Georgia. 

The third count recites the undue means practised on certain 
members of the legislature, as stated in the second count, and then 
alleges that, in consequence of these practices and of other causes, 
a subsequent legislature passed an act annulling and rescinding 
the law under which the conveyance to the original grantees was 
made, declaring that conveyance void, and asserting the title of the 
state to the lands it contained. The count proceeds to recite at 
large this rescinding act, and concludes with averring that, by rea¬ 
son of this act, the title of the said Peck in the premises was con¬ 
stitutionally and legally impaired, and rendered null and void. 

After protesting as before that no such promises were made as 
stated in this count, the defendant again pleads that himself and 
the first purchaser under the original grantees, and all intermediate 
holders of the property, were purchasers without notice. 

To this plea there is a demurrer and joinder, * * 

In this case the legislature may have had ample proof that the 
original grant was obtained by practices which can never be too 
much reprobated, and which would have justified its abrogation so 
far as respected those to whom crime was imputable. But the 
grant, when issued, conveyed an estate in fee-simple to the grantee, 
clothed with all the solemnities which law can bestow. This es¬ 
tate was transferable; and those who purchased parts of it were 
not stained by that guilt which infected the original transaction. 
Their case is not distinguishable from the ordinary case of pur¬ 
chasers of a legal estate without knowledge of any secret fraud 
which might have led to the emanation of the original grant. Ac¬ 
cording to the well-known course of equity, their rights could not 
be affected by such fraud. Their situation was the same, their ti¬ 
tle was the same, with that of every other member of the com¬ 
munity who holds land by regular conveyances from the original 
patentee. 

Is the power of the legislature competent to the annihilation of 
such title, and to a resumption of the property thus held? The 
principle asserted is, that one legislature is competent to repeal 
any act which a former legislature was competent to pass; and 
that one legislature cannot abridge the powers of a succeeding leg¬ 
islature. 

The correctness of this principle, so far as respects general leg¬ 
islation, can never be controverted. But if an act be done under a 
law, a succeeding legislature cannot undo it. The past cannot be 
recalled by the most absolute power. Conveyances have been 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 459 

made, those conveyances have vested legal estates, and, if those 
estates may be seized by the sovereign authority, still, that they 
originally vested is a fact, and cannot cease to be a fact. When, 
then, a law is in its nature a contract, when absolute rights have 
vested under that contract, a repeal of the law cannot divest those 
rights; and the act of annulling them, if legitimate, is rendered so 
by a power applicable to the case of every individual in the com¬ 
munity. * * * 

The Constitution of the United States declares that no state shall 
pass any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts. Does the case now under consideration 
come within this prohibitory section of the Constitution? 

In considering this very interesting question, we immediately 
ask ourselves what is a contract? Is a grant a contract? A con¬ 
tract is a compact between two or more parties, and is either ex¬ 
ecutory or executed. An executory contract is one in which a par¬ 
ty binds himself to do, or not to do, a particular thing; such was 
the law under which the conveyance was made by the governor. 
A contract executed is one in which the object of contract is per¬ 
formed ; and this, says Blackstone, differs in nothing from a grant. 
The contract between Georgia and the purchasers was executed by 
the grant. A contract executed, as well as one which is executory, 
contains obligations binding on the parties. A grant, in its own 
nature, amounts to an extinguishment of the right of the grantor, 
and implies a contract not to reassert that right. A party is, there¬ 
fore, always estopped by his own grant. 

Since, then, in fact, a grant is a contract executed, the obligation 
of which still continues, and since the Constitution uses the gen¬ 
eral term contract, without distinguishing between those which 
are executory and those which are executed, it must be construed 
to comprehend the latter as well as the former. A law annulling 
conveyances between individuals, and declaring that the grantors 
should stand seised of their former estates, notwithstanding those 
grants, would be as repugnant to the Constitution as a law dis¬ 
charging the vendors of property from the obligation of executing 
their contracts by conveyances. It would be. strange if a contract 
to convey was secured by the Constitution, while an absolute con¬ 
veyance remained unprotected. 

If, under a fair construction of the Constitution, grants are com¬ 
prehended under the term contracts, is a grant from the state ex¬ 
cluded from the operation of the provision? Is the clause to be 
considered as inhibiting the state from impairing the obligation of 
contracts between two individuals, but as excluding from that in¬ 
hibition contracts made with itself? 

The words themselves contain no such distinction. They are 
general, and are applicable to contracts of every description. If 
contracts made with the state are to be exempted from their op- 


460 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

eration, the exception must arise from the character of the con¬ 
tracting party, not from the words which are employed. Whatever 
respect might have been felt for the state sovereignties, it is not 
to be disguised that the framers of the Constitution viewed, with 
some apprehension, the violent acts which might grow out of the 
feelings of the moment; and that the people of the United States, 
in adopting that instrument, have manifested a determination to 
shield themselves and their property from the effects of those sud¬ 
den and strong passions to which men are exposed. The restric¬ 
tions on the legislative power of the states are obviously founded 
in this sentiment; and the Constitution of the United States con¬ 
tains what may be deemed a bill of rights for the people of each 
state. 

No state shall pass any bill of attainder, ex post facto law, or 
law impairing the obligation of contracts. A bill of attainder may 
affect the life of an individual, or may confiscate his property, or 
may do both. In this form the power of the legislature over the 
lives and fortunes of individuals is expressly restrained. What 
motive, then, for implying, in words which import a general pro¬ 
hibition to impair the obligation of contracts, an exception in favor 
of the right to impair the obligation of those contracts into which 
the state may enter? 

The state legislatures can pass no ex post facto law. An ex post 
facto law is one which renders an act punishable in a manner in 
which it was not punishable when it was committed. Such a law 
may inflict penalties on the person, or may inflict pecuniary penal¬ 
ties which swell the public treasury. The legislature is then pro¬ 
hibited from passing a law by which a man’s estate, or any part of 
it, shall be seized for a crime which was not declared, by some 
previous law, to render him liable to that punishment. Why, then, 
should violence be done to the natural meaning of words for the 
purpose of leaving to the legislature the power of seizing, for pub¬ 
lic use, the estate of an individual in the form of a law annulling 
the title by which he holds that estate? The court can perceive no 
sufficient grounds for making that distinction. This rescinding act 
would have the elfect of an ex post facto law. It forfeits the estate 
of Fletcher for a crime not committed by himself, but by those 
from whom he purchased. This cannot be effected in the form of 
an ex post facto law, or bill of attainder; why, then, is it allowable 
in the form of a law annulling the original grant? 

The argument in favor of presuming an intention to except a 
case, not excepted by the words of the Constitution, is susceptible 
of some illustration from a principle originally engrafted in that 
instrument, though no longer a part of it. The Constitution, as 
passed, gave the courts of the United States jurisdiction in suits 
brought against individual states. A state, then, which violated its 
own contract, was suable in the courts of the United States for 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 461 

that violation. Would it have been a defence in such a suit to say 
that the state had passed a law absolving itself from the contract? 
It is scarcely to be conceived that such a defence could be set up. 
And yet, if a state is neither restrained by the general principles of 
our political institutions, nor by the words of the Constitution, 
from impairing the obligation of its own contracts, such a defence 
would be a valid one. This feature is no longer found in the Con¬ 
stitution; but it aids in the construction of those clauses with 
which it was originally associated. 

It is, then, the unanimous opinion of the court, that, in this case, 
the estate having passed into the hands of a purchaser for a valu¬ 
able consideration, without notice, the state of Georgia was re¬ 
strained, either by general principles which are common to our 
free institutions, or by the particular provisions of the Constitution 
of the United States, from passing a law whereby the estate of the 
plaintifi in the premises so purchased could be constitutionally and 
legally impaired and rendered null and void. * * * 

Judgment affirmed. 

Mr. Justice Johnson [dissenting on two points]. * * * 
Whether the words, “acts impairing the obligation of contracts,” 
can be construed to have the same force as must have been given 
to the words “obligation and effect of contracts,” is the difficulty in 
my mind. 

There can be no solid objection to adopting the technical defini¬ 
tion of the word “contract,” given by Blackstone. The etymology, 
the classical signification, and the civil-law idea of the word, will 
all support it. But the difficulty arises on the word “obligation,” 
which certainly imports an existing moral or physical necessity. 
Now a grant or conveyance by no means necessarily implies the 
continuance of an obligation beyond the moment of executing it. 
It is most generally but the consummation of a contract, is functus 
officio the moment it is executed, and continues afterwards to be 
nothing more than the evidence that a certain act was done. * * 


STONE V. MISSISSIPPI. 

(Supreme Court of United States, 1879. 101 U. S. 814, 25 L. Ed. 1079.) 

[Error to the Mississippi Supreme Court. In 1867 the state leg¬ 
islature chartered a corporation empowered for 25 years to conduct 
a lottery in consideration of the payment to the state of $5,000, an 
annual sum of $1,000, and % per cent, of the proceeds of its sale of 
tickets. In 1868 and 1870 a new Constitution and a statute for¬ 
bade all lotteries in the state. A quo warranto proceeding against 
the managers of the company for violating these later acts was 
sustained by the state Supreme Court, and this writ of error was 
taken.] 



4G2 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

Mr. Chief Justice Waite. * * * if the legislature that grant¬ 

ed this charter had the power to bind the people of the state and all 
succeeding legislatures to allow the corporation to continue its cor¬ 
porate business during the whole term of its authorized existence, 
there is no doubt about the sufficiency of the language employed to* 
effect that object, although there was an evident purpose to conceal 
the vice of the transaction by the phrases that were used. Whether 
the alleged contract exists, therefore, or not, depends on the author¬ 
ity of the legislature to bind the state and the people of the state 
in that way. * ’K * 

The question is therefore directly presented, whether, in view of 
these facts, the legislature of a state can, by the charter of a lot¬ 
tery company, defeat the will of the people, authoritatively express¬ 
ed, in relation to the further continuance of such business in their 
midst. We think it cannot. No legislature can bargain away the 
public health or the public morals. The people themselves can¬ 
not do it, much less their servants. The supervision of both these 
subjects of governmental power is continuing in its nature, and 
they are to be dealt with as the special exigencies of the moment 
may require. Government is organized with a view to their pres¬ 
ervation, and cannot divest itself of the power to provide for them. 
For this purpose the largest legislative discretion is allowed, and 
the discretion cannot be parted with any more than the power it¬ 
self. Beer Company v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989. 

In Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 
4 L. Ed. 629, it was argued that the contract clause of the Con¬ 
stitution, if given the effect contended for in respect to corporate 
franchises, “would be an unprofitable and vexatious interference 
with the internal concerns of a state, would unnecessarily and un¬ 
wisely embarrass its legislation, and render immutable those civil 
institutions which are established for the purpose of internal gov¬ 
ernment, and which, to subserve those purposes, ought to vary 
with varying circumstances” (p. 628) ; but Mr. Chief Justice Mar¬ 
shall, when he announced the opinion of the court, was careful to 
say (p. 629), “that the framers of the Constitution did not intend 
to restrain states in the regulation of their civil institutions, adopt¬ 
ed for internal government, and that the instrument they have 
given us is not to be so construed.” The present case, we think, 
comes within this limitation. We have held, not however with¬ 
out strong opposition at times, that this clause protected a corpo¬ 
ration in its charter exemptions from taxation. While taxation is 
in general necessary for the support of government, it is not part 
of the government itself. Government was not organized for the 
purposes of taxation, but taxation may be necessary for the pur¬ 
poses of government. As such, taxation becomes an incident to the 
exercise of the legitimate functions of government, but nothing 
more. No government dependent on taxation for support can bar- 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 463 

gain away its whole power of taxation, for that would be substan¬ 
tially abdication. All that has been determined thus far is, that for 
a consideration it may, in the exercise of a reasonable discretion, 
and for the public good, surrender a part of its powers in this 
particular. 

But the power of governing is a trust committed by the people 
to the government, no part of which can be granted away. The 
people, in their sovereign capacity, have established their agencies 
for the preservation of the public health and the public morals, and 
the protection of public and private rights. These several agencies 
can govern according to their discretion, if within the scope of their 
general authority, while in power; but they cannot give away nor 
sell the discretion of those that are to come after them, in respect 
to matters the government of which, from the very nature of 
things, must “vary with varying circumstances.’’ They may create 
corporations, and give them, so to speak, a limited citizenship; but 
as citizens, limited in their privileges, or otherwise, these creatures 
of the government creation are subject to such rules and regula¬ 
tions as may from time to time be ordained and established for the 
preservation of health and morality. 

The contracts which the Constitution protects are those that re¬ 
late to property rights, not governmental. It is not always easy 
to tell on which side of the line which separates governmental from 
property rights a particular case is to be put; but in respect to lot¬ 
teries there can be no difficulty. They are not, in the legal accepta¬ 
tion of the term, mala in se, but, as we have just seen, may prop¬ 
erly be made mala prohibita. They are a species of gambling, and 
wrong in their influences. They disturb the checks and balances 
of a well-ordered community. Society built on such a foundation 
would almost of necessity bring forth a population of speculators 
and gamblers, living on the expectation of what, “by the casting of 
lots, or by lot, chance, or otherwise,” might be “awarded” to them 
from the accumulations of others. Certainly the right to suppress 
them is governmental, to be exercised at all times by those in pow¬ 
er, at their discretion. Any one, therefore, who accepts a lottery 
charter does so with the implied understanding that the people, in 
their sovereign capacity, and through their properly constituted 
agencies, may resume it at any time when the public good shall re¬ 
quire, whether it be paid for or not. All that one can get by such 
a charter is a suspension of certain governmental rights in his favor, 
subject to withdrawal at will. He has in legal effect nothing more 
than a license to enjoy the privilege on the terms named for the 
specified time, unless it be sooner abrogated by the sovereign pow¬ 
er of the state. It is a permit, good as against existing laws, but 
subject to future legislative and constitutional control or with¬ 
drawal. 

Judgment affirmed. 


464 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. 

{Supreme Court of United States, 1885. 115 U. S. 650, 6 Sup. Ct. 252, 29 L. 

Ed. 516.) 

[Appeal from the United States Circuit Court for the Eastern 
District of Louisiana. In 1875 the New Orleans Gas Company 
became the owner of an exclusive legislative grant to supply gas 
in New Orleans by pipes in the street for 50 years from that date. 
The state Constitution of 1879 purported to abolish this monopoly 
provision, and in 1881 the Louisiana Light Company was organ¬ 
ized under a general law and authorized by the city of New Or¬ 
leans to supply gas through street pipes. The New Orleans Com¬ 
pany sought to enjoin this in the above-named court. A demurrer 
to the bill was sustained on the ground of the plaintiff’s not being 
properly incorporated, and this appeal was taken. The Supreme 
Court held that the plaintiff was properly incorporated and then 
dealt with the validity of the plaintiff’s alleged exclusive contract.] 

Mr. Justice Harlan. * * * 'phe manufacture and distribu¬ 

tion of illuminating gas, by means of pipes or conduits placed, un¬ 
der legislative authority, in the streets of a town or city, is a busi¬ 
ness of a public character. Under proper management the busi¬ 
ness contributes very materially to the public convenience, while, 
in the absence of efficient supervision, it may disturb the comfort 
and endanger the health and property of the community. It also 
holds important relations to the public through the facilities fur¬ 
nished, by the lighting of streets with gas, for the detection and 
prevention of crime. * * * For these reasons, and the necessity 
of uniform regulations for the manufacture and distribution of 
gas for use by the community, we are of opinion that the supplying 
of it to the city of New Orleans, and to its inhabitants, by the 
means designated in the legislation of Louisiana, was an object for 
which the state could rightfully make provision. * * * legisla¬ 
tion of that character is not liable to the objection that it is a 
mere monopoly, preventing citizens from engaging in an ordinary 
pursuit or business open as of common right to all, upon terms of 
equality; for the right to dig up the streets and other public ways 
of New Orleans, and place therein pipes and mains for the distribu¬ 
tion of gas for public and private use, is a franchise, the privilege 
of exercising which could only be granted by the state, or by the 
municipal government of that city acting under legislative au¬ 
thority. Dill. Mun. Corp. (3d Ed.) § 691; State v. Cincinnati Gas 
Co., 18 Ohio St. 262. See, also, Boston v. Richardson, 13 Allen 
(Mass.) 146. * sK * It therefore be assumed, in the further 
consideration of this case, that the charter of the Crescent City 
Gas-Light Company,—to whose rights and franchises the present 
plaintiff has succeeded,—so far as it created a corporation with au- 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


465 


thority to manufacture gas and to distribute the same by means 
of pipes, mains, and conduits, laid in the streets and other public 
ways of New Orleans, constituted ^ ^ ^ contract * ♦ * 

within the provision of the Constitution. * ^ ^ 

But it is earnestly insisted that, since the supplying of New 
Orleans and its inhabitants with gas has relation to the public 
comfort, and, in some sense, to the public health and the public 
safety, and, for that reason, is an object to which the police power 
extends, it was not competent for one legislature to limit or re¬ 
strict the power of a subsequent legislature, in respect to those 
subjects. It is, consequently, claimed that the state may at pleas¬ 
ure recall the grant of exclusive privileges to the plaintiff; and that 
no agreement by her, upon whatever consideration, in reference 
to a matter connected in any degree with the public comfort, the 
public health, or the public safety, will constitute a contract the 
obligation of which is protected against impairment by the nation¬ 
al Constitution. And this position is supposed by counsel to be 
justified by recent adjudications of this court in which the nature 
and scope of the police power have been considered. * * * 

[Here follow references to the vSlaughter-House Cases, 16 Wall. 
36, 62, 21 L. Ed. 394, Stone v. Mississippi, 101 U. S. 814, 818, 25 
L. Ed. 1079, Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. Ed. 23, and 
Barbier v. Connolly, 113 U. S. 27, 31, 5 Sup. Ct. 357, 28 L. Ed. 
923—cases suggesting definitions of the “police power.”] Defini¬ 
tions of the police power must, however, be taken subject to the 
condition that the state cannot, in its exercise, for any purpose 
whatever, encroach upon the powers of the general government, or 
rights granted or secured by the supreme law of the land. ♦ * 

That the police power, according to its largest definition, is re¬ 
stricted in its exercise by the national Constitution, is further 
shown by those cases in which grants of exclusive privileges re¬ 
specting public highways and bridges over navigable streams have 
been sustained as contracts the obligations of which are fully pro¬ 
tected against impairment by state enactments. * * [Here 

follow references to Bridge Prop’rs v.' Hoboken Co., 1 Wall. 116, 
17 L. Ed. 571, The Binghamton Bridge, 3 Wall. 51, 18 L. Ed. 137, 
and other cases.] Numerous other cases could be cited as estab¬ 
lishing the doctrine that the state may by contract restrict the 
exercise of some of its most important powers. We particularly 
refer to those in which it is held that an exemption from taxation, 
for a valuable consideration at the time advanced, or for services 
to be thereafter performed, constitutes a contract within the mean¬ 
ing of the Constitution. Asylum v. New Orleans, 105 U. S. 368, 
26 L. Ed. 1128; Home of the Friendless v. Rouse, 8 Wall. 430, 
19 L. Ed. 495; New Jersey v. Wilson, 7 Cranch, 166, 3 L. Ed. 
303; Bank of Ohio v. Knoop, 16 How. 376, 14 E. Ed. 977; Gordon 
Hall Cases Const.L.— 30 


466 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


V. Appeal Tax Courts, 3 How. 133, 11 L. Ed. 529; Wilmington 
R. R. V. Reid, 13 Wall. 266, 20 L. Ed. 568; Humphrey v. Pegues, 
16 Wall. 248, 249, 21 L. Ed. 326; Farrington v. Tennessee, 95 U. S. 
689, 24 L. Ed. 558. 

If the state can, by contract, restrict the exercise of her power 
to construct and maintain highways, bridges, and ferries, by grant¬ 
ing to a particular corporation the exclusive right to construct and 
operate a railroad within certain lines and between given points, 
or to maintain a bridge or operate a ferry over one of her navigable 
streams within designated limits; if she may restrict the exercise 
of the power of taxation, by granting exemption from taxation 
to particular individuals and corporations,—it is difficult to per¬ 
ceive upon what ground we can deny her authority, when not for¬ 
bidden by her own organic law, in consideration of money to be 
expended and important services to be rendered for the promotion 
of the public comfort, the public health, or the public safety, to 
grant a franchise, to be exercised exclusively by those who thus 
do for the public what the state might undertake to perform either 
herself or by subordinate municipal agencies. The former adjudi¬ 
cations of this court, upon which counsel mainly rely, do not de¬ 
clare any different doctrine, or justify the conclusion for which 
the defendant contends. * * * [Plere follows an examination 

of Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989, Fertilizing 
Co. V. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036, Stone v. Missis¬ 
sippi, supra, p. 461, and Butch. Un. Co. v. Cres. City Co., Ill U. S. 
746, 4 Sup. Ct. 652, 28 L. Ed. 585.] 

The principle upon which [these] decisions * * * rest is that 
one legislature cannot so limit the discretion of its successors that 
they may not enact such laws as are necessary to protect the pub¬ 
lic health or the public morals. That principle, it may be observed, 
was announced with reference to particular kinds of private busi¬ 
ness which, in whatever manner conducted, were detrimental to 
the public health or the public morals. It is fairly the result of 
those cases that statutory authority, given by the state, to corpo¬ 
rations or individuals to engage in a particular private business 
attended by such results, while it protects them for the time 
against public prosecution, does not constitute a contract prevent¬ 
ing the withdrawal of such authority, or the granting of it to 
others. 

The present case involves no such considerations. For, as we 
have seen, the manufacture of gas, and its distribution for public 
and private use by means of pipes laid, under legislative authori¬ 
ty, in the streets and ways of a city, is not an ordinary business 
in which every one may engage, but is a franchise belonging to 
the government, to be granted, for the accomplishment of public 
objects, to whomsoever, and upon what terms, it pleases. It is 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 467 

a business of a public nature, and meets a public necessity for 
which the state may make provision. It is one which, so far from 
affecting the public injuriously, has become one of the most im¬ 
portant agencies of civilization for the promotion of the public 
convenience and the public safety. * ^ * It is not our province 
to declare that the legislature unwisely exercised the discretion 
with which it was invested. Nor are we prepared to hold that 
the state was incapable—her authority in the premises not being, 
at the time, limited by her own organic law—of providing for sup¬ 
plying gas to one of her municipalities and its inhabitants by 
means of a valid contract with a private corporation of her own 
creation. * * 

With reference to the contract in this case, it may be said that it 
is not, in any legal sense, to the prejudice of the public health or 
the public safety. It is none the less a contract because the manu¬ 
facture and distribution of gas, when not subjected to proper su¬ 
pervision, may possibly work injury to the public; for the grant 
of exclusive privileges to the plaintiff does not restrict the power 
of the state, or of the municipal government of New Orleans act¬ 
ing under authority for that purpose, to establish and enforce reg¬ 
ulations, not inconsistent with the essential rights granted by 
plaintiff’s charter, necessary for the protection of the public against 
injury, whether arising from the want of due care in the conduct 
of its business, or from an improper use of the streets in laying 
gas-pipes, or from the failure of the grantee to furnish gas of the 
required quality and amount. The constitutional prohibition upon 
state laws impairing the obligation of contracts does not restrict 
the power of the state to protect the public health, the public 
morals, or the public safety, as the one or the other may be in¬ 
volved in the execution of such contracts. Rights and privileges 
arising from contracts with a state are subject to regulations for 
the protection of the public health, the public morals, and the pub¬ 
lic safety, in the same sense, and to the same extent, as are all 
contracts and all property, whether owned by natural persons or 
corporations. * * * 

The article in the state Constitution 1879 in relation to monop¬ 
olies is not, in any legal sense, an exercise of the police power for 
the preservation of the public health, or the promotion of the pub¬ 
lic safety; for the exclusiveness of a grant has no relation whatever 
to the public health, or to the public safety. These considerations 
depend upon the nature of the business or duty to which the grant 
relates, and not at all upon the inquiry whether a franchise is ex¬ 
ercised by one rather than by many. The monopoly clause only 
evinces a purpose to reverse the policy previously pursued of 
granting to private corporations franchises accompanied by ex¬ 
clusive privileges, as a means of accomplishing public objects. 


4G8 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

* * ♦ If, in the judgment of the state, the public interests will 

be best subserved by an abandonment of the policy of granting 
exclusive privileges to corporations, other than railroad companies, 
in consideration of services to be performed by them for the pub¬ 
lic, the way is open for the accomplishment of that result with 
respect to corporations whose contracts with the state are un¬ 
affected by that change in her organic law. The rights and fran¬ 
chises which have become vested upon the faith of such contracts 
can be taken by the public, upon just compensation to the com¬ 
pany, under the state’s power of eminent domain. West River 
Bridge Co. v. Dix [6 How. 507, 12 L. Ed. 535] ubi supra; Rich¬ 
mond, etc., R. Co., V. Louisa. R. Co., 13 How. 71, 83, 14 L. Ed. 
55; Boston Water-power Co. v. Boston & W. R. Corp., 23 Pick. 
(Mass.) 360, 393; Boston & L. R. Corp. v. Salem & L. R. Co., 2 
Gray (Mass.) 1, 35. In that way the plighted faith of the public 
will be kept with those who have made large investments upon 
the assurance by the state that the contract with them will be per¬ 
formed. ^ * 

Decree reversed. __ 

TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD. 

(Supreme Court of United States, 1819. 4 Wheat. 518, 4 L. Ed. 629.) 

[The facts are stated in the opinion below.] 

Marshall, C. J. This is an action of trover, brought by the 
Trustees of Dartmouth College against William H. Woodward, in 
the state court of New Hampshire, for the book of records, cor¬ 
porate seal, and other corporate property, to which the plaintiffs 
allege themselves to be entitled. A special verdict, after setting 
out the rights of the parties, finds for the defendant, if certain acts 
of the Legislature of New Hampshire, passed on the 27th of June 
and on the 18th of December, 1816, be valid, and binding on the 
trustees without their assent, and not repugnant to the Constitu¬ 
tion of the United States; otherwise, it finds for the plaintiffs. 
The Superior Court of Judicature of New Hampshire rendered a 
judgment upon this verdict for the defendant, which judgment 
has been brought before this court by writ of error. The single 
question now to be considered is, do the acts to which the ver¬ 
dict refers violate the Constitution of the United States? * * * 

The title of the plaintiffs originates in a charter dated the 13th 
day of December, in the year 1769, incorporating twelve persons 
therein mentioned, by the name of “The Trustees of Dartmouth 
College,” granting to them and their successors the usual corpo¬ 
rate privileges and powers, and authorizing the trustees, who are 
to govern the college, to fill up all vacancies which may be created 
in their own body. 



LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 469 

The defendant claims under three acts of the Legislature of New 
Hampshire, the most material of which was passed on the 27th 
of June, 1816, and is entitled “An act to amend the charter and en¬ 
large and improve the corporation of Dartmouth College.” Among 
other alterations in the charter, this act increases the number 
of trustees to twenty-one, gives the appointment of the additional 
members to the executive of the state, and creates a board of over¬ 
seers, with power to inspect and control the most important acts 
of the trustees. This board consists of twenty-five persons. The 
President of the Senate, the Speaker of the House of Representa¬ 
tives of New Hampshire, and the Governor and Lieutenant-Gov¬ 
ernor of Vermont, for the time being, are to be members ex of¬ 
ficio. The board is to be completed by the Governor and Council 
of New Hampshire, who are also empowered to fill all vacancies 
which may occur. The acts of the 18th and 26th of December are 
supplemental to that of the 27th of June, and are principally in¬ 
tended to carry that act into effect. 

The majority of the trustees of the college have refused to ac¬ 
cept this amended charter, and have brought this suit for the cor¬ 
porate property, which is in possession of a person holding by vir¬ 
tue of the acts which have been stated. 

It can require no argument to prove that the circumstances of 
this case constitute a contract. An application is made to the 
crown for a charter to incorporate a religious and literary institu¬ 
tion. In the application it is stated that large contributions have 
been made for the object, which will be conferred on the corpora¬ 
tion as soon as it shall be created. The charter is granted, and 
on its faith the property is conveyed. Surely in this transaction 
every ingredient of a complete and legitimate contract is to be 
found. 

The points for consideration are, 1. Is this contract protected 
by the Constitution of the United States? 2. Is it impaired by the 
acts under which the defendant holds? 

1. On the first point it has been argued that the word “contract,” 
in its broadest sense, would comprehend the, political relations be¬ 
tween the government and its citizens, would extend to offices 
held within a state for state purposes, and to many of those laws 
concerning civil institutions, which must change with circum¬ 
stances, and be modified by ordinary legislation; which deeply 
concern the public, and which, to preserve good government, the 
public judgment must control. That even marriage is a contract, 
and its obligations are affected by the laws respecting divorces. 
That the clause in the Constitution, if construed in its greatest lat¬ 
itude, would prohibit these laws. Taken in its broad, unlimited 
sense, the clause would be an unprofitable and vexatious interfer¬ 
ence with the internal concerns of a state, would unnecessarily 


470 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


and unwisely embarrass its legislation, and render immutable those 
civil institutions which are established for purposes of internal 
government, and which, to subserve those purposes, ought to vary 
with varying circumstances. That as the framers of the Constitu¬ 
tion could never have intended to insert in that instrument a 
provision so unnecessary, so mischievous, and so repugnant to its 
general spirit, the term “contract” must be understood in a more 
limited sense. That it must be understood as intended to guard 
against a power of at least doubtful utility, the abuse of which had 
been extensively felt, and to restrain the legislature in future from 
violating the right to property. That anterior to the formation of 
the Constitution, a course of legislation had prevailed in many, if not 
in all, of the states, which weakened the confidence of man in man, 
and embarrassed all transactions between individuals, by dispens¬ 
ing with a faithful performance of engagements. To correct this 
mischief, by restraining the power which produced it, the state leg¬ 
islatures were forbidden “to pass any law impairing the obligation 
of contracts,” that is, of contracts respecting property, under which 
some individual could claim a right to something beneficial to him¬ 
self ; and that since the clause in the Constitution must in con¬ 
struction receive some limitation, it may be confined, and ought to 
be confined, to cases of this description; to cases within the mis¬ 
chief it was intended to remedy. 

The general correctness of these observations cannot be con¬ 
troverted. That the framers of the Constitution did not intend to 
restrain the states in the regulation of their civil institutions, 
adopted for internal government, and that the instrument they have 
given us is not to be so construed, may be admitted. The provision 
of the Constitution never has been understood to embrace other 
contracts than those which respect property or some object of 
value, and confer rights which may be asserted in a court of jus¬ 
tice. It has never been understood to restrict the general right 
of the legislature to legislate on the subject of divorces. Those 
acts enable some tribunal, not to impair a marriage contract, but 
to liberate one of the parties because it has been broken by the 
other. When any state legislature shall pass an act annulling all 
marriage contracts, or allowing either party to annul it without 
the consent of the other, it will be time enough to inquire whether 
such an act be constitutional. 

The parties in this case differ less on general principles, less on 
the true construction of the Constitution in the abstract, than on 
the application of those principles to his case, and on the true 
construction of the charter of 1769. This is the point on which the 
cause essentially depends. If the act of incorporation be a grant 
of political power, if it create a civil institution to be employed in 
the administration of the government, or if the funds of the col- 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


471 


lege be public property, or if the state of New Hampshire, as a 
government, be alone interested in its transactions, the subject is 
one in which the legislature of the state may act according to its 
own judgment, unrestrained by any limitation of its power im¬ 
posed by the Constitution of the United States. 

But if this be a private eleemosynary institution, endowed with 
a capacity to take property for objects unconnected with govern¬ 
ment, whose funds are bestowed by individuals on the faith of 
the charter; if the donors have stipulated for the future disposi¬ 
tion and management of those funds in the manner prescribed 
by themselves; there may be more difficulty in the case, although 
neither the persons who have made these stipulations, nor those 
for whose benefit they were made, should be parties to the cause. 
Those who are no longer interested in the property may yet re¬ 
tain such an interest in the preservation of their own arrange¬ 
ments as to have a right to insist that those arrangements shall 
be held sacred. Or, if they have themselves disappeared, it be¬ 
comes a subject of serious and anxious inquiry whether those 
whom they have legally empowered to represent them forever 
may not assert all the rights which they possessed while in being; 
whether, if they be without personal representatives who may feel 
injured by a violation of the compact, the trustees be not so com¬ 
pletely their representatives in the eye of the law as to stand in 
their place, not only as respects the government of the college, but 
also as respects the maintenance of the college charter. 

It becomes then the duty of the court most seriously to examine 
this charter, and to ascertain its true character. * * * [Here 

is recited the success of Rev. Eleazer Wheelock in establishing 
a charity school for the religious instruction of Indians, his so¬ 
licitation of money and land to establish a college in New Hamp¬ 
shire to extend the undertaking and to promote learning among 
the English, and his appointment of trustees of the property con¬ 
tributed.] Dr. Wheelock then applied to the crown for an act of 
incorporation, and represented the expediency of appointing those 
whom he had, by his last will, named as trustees in America to 
be members of the proposed corporation. ‘Th consideration of the 
premises,” “for the education and instruction of the youth of the 
Indian tribes,” &c., “and also of English youth and any others,” 
the charter was granted, and the Trustees of Dartmouth College 
were by that name created a body corporate, with power, for the 
use of the said college, to acquire real and personal property, and 
to pay the president, tutors, and other officers of the college such 
salaries as they shall allow. * [Here are mentioned the 

charter powers of the trustees to appoint a president and members 
of the instructing body of the college, to fill vacancies in their 
own body, and to make regulations for the government of the col- 


472 LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 

lege, not repugnant to law and not excluding persons for their 
religious sentiments or professions.] This charter was accepted, 
and the property, both real and personal, which had been con¬ 
tributed for the benefit of the college, was conveyed to and vested 
in the corporate body. 

From this brief review of the most essential parts of the charter, 
it is apparent that the funds of the college consisted entirely of 
private donations. * * * Dartmouth College is really endowed 

by private individuals, who have bestowed their funds for the 
propagation of the Christian religion among the Indians, and for 
the promotion of piety and learning generally. From these funds 
the salaries of the tutors are drawn, and these salaries lessen the 
expense of education to the students. It is then an eleemosynary 
(1 Bl. Com. 471) and, as far as respects its funds, a private cor¬ 
poration. 

Do its objects stamp on it a different character? Are the trus¬ 
tees and professors public officers," invested with any portion of 
political power, partaking in any degree in the administration of 
civil government, and performing duties which flow from the sov¬ 
ereign authority? 

That education is an object of national concern and a proper 
subject of legislation, all admit. That there may be an institution 
founded by government and placed entirely under its immediate 
control, the officers of which would be public officers, amenable 
exclusively to government, none will deny. But is Dartmouth 
College such an institution? Is education altogether in the hands 
of government? Does every teacher of youth become a public 
officer, and do donations for the purpose of education necessarily 
become public property, so far that the will of the legislature, hot 
the will of the donor, becomes the law of the donation? These 
questions are of serious moment to society, and deserve to be well con¬ 
sidered. * * * 

Whence, then, can be derived the idea that Dartmouth College 
has become a public institution, and its trustees public officers, 
exercising powers conferred by the public for public objects? Not 
from the source whence its funds were drawn, for its foundation 
is purely private and eleemosynary; not from the application of 
those funds, for money may be given for education, and the per¬ 
sons receiving it do not, by being employed in the education of 
youth, become members of the civil government. Is it from the 
act of incorporation? Let this subject be considered. 

A corporation is an artificial being, invisible, intangible, and ex¬ 
isting only in contemplation of law. Being the mere creature of 
law, it possesses only those properties which the charter of its 
creation confers upon it, either expressly or as incidental to its 
very existence. These are such as are supposed best calculated to 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 473 

effect the object for which it was created. Among the most im¬ 
portant are immortality, and, if the expression may be allowed,, 
individuality; properties, by which a perpetual succession of many 
persons are considered as the same, and may act as a single indi¬ 
vidual. They enable a corporation to manage its own affairs, and 
to hold property without the perplexing intricacies, the hazardous 
and endless necessity, of perpetual conveyances for the purpose 
of transmitting it from hand to hand. It is chiefly for the pur¬ 
pose of clothing bodies of men in succession with these qualities 
and capacities that corporations were invented and are in use. 
By these means, a perpetual succession of individuals are capable 
of acting for the promotion of the particular object, like one im¬ 
mortal being. But this being does not share in the civil govern¬ 
ment of the country, unless that be the purpose for which it was 
created. Its immortality no more confers on it political power or a 
political character than immortality would confer such power or 
character on a natural person. It is no more a state instrument 
than a natural person exercising the same powers would be. If, 
then, a natural person, employed by individuals in the education 
of youth, or for the government of a seminary in which youth is 
educated, would not become a public officer, or be considered as 
a member of the civil government, how is it that this artificial 
being, created by law for the purpose of being employed by the 
same individuals for the same purposes, should become a part of 
the civil government of the country? Is it because its existence, 
its capacities, its powers, are given by law? Because the govern¬ 
ment has given it the power to take and to hold property, in a 
particular form and for particular purposes, has the government 
a consequent right substantially to change that form, or to vary 
the purposes to which the property is to be applied? This prin¬ 
ciple has never been asserted or recognized, and is supported by 
no authority. Can it derive aid from reason? 

The objects for which a corporation is created are universally 
such as the government wishes to promote. They are deemed 
beneficial to the country; and this benefit constitutes the consid¬ 
eration, and, in most cases, the sole consideration of the grant. 
In most eleemosynary institutions, the object would be difficult, 
perhaps unattainable, without the aid of a charter of incorporation. 
Charitable or public-spirited individuals, desirous of making per¬ 
manent appropriations for charitable or other useful purposes, 
find it impossible to effect their design securely and certainly with¬ 
out an incorporating act. They apply to the government, state 
their beneficent object, and offer to advance the money necessary 
for its accomplishment, provided the government will confer on 
the instrument which is to execute their designs the capacity to 
execute them. The proposition is considered and approved. The 


474 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


benefit to the public is considered as an ample compensation for 
the faculty it confers, and the corporation is created. If the ad¬ 
vantages to the public constitute a full compensation for the fac¬ 
ulty it gives, there can be no reason for exacting a further compen¬ 
sation, by claiming a right to exercise over this artificial being a 
power which changes its nature, and touches the fund for the se¬ 
curity and application of which it was created. There can be no 
reason for implying in a charter, given for a valuable considera¬ 
tion, a power which is not only not expressed, but is in direct con¬ 
tradiction to its express stipulations. 

From the fact, then, that a charter of incorporation has been 
granted, nothing can be inferred which changes the character of 
the institution, or transfers to the government any new power over 
it. The character of civil institutions does not grow out of their 
incorporation, but out of the manner in which they are formed, and 
the objects for which they are created. The right to change them 
is not founded on their being incorporated, but on their being the 
instruments of government, created for its purposes. The same 
institutions, created for the same objects, though not incorporated, 
would be public institutions, and, of course, be controllable by 
the legislature. The incorporating act neither gives nor prevents 
this control. Neither, in reason, can the incorporating act change 
the character of a private eleemosynary institution. 

We are next led to the inquiry, for whose benefit the property 
given to Dartmouth College was secured? The counsel for the 
defendant have insisted that the beneficial interest is in the people 
of New Hampshire. * ^ * 'phe particular interests of New 

Hampshire never entered into the mind of the donors, never con¬ 
stituted a motive for their donation. The propagation of the Chris¬ 
tian religion among the savages, and the dissemination of useful 
knowledge among the youth of the country, were the avowed and 
the sole objects of their contributions. In these New Hampshire 
would participate; but nothing particular or exclusive was in¬ 
tended for her. * * * The clause which constitutes the in¬ 

corporation, and expresses the objects for which it was made, de¬ 
clares those objects to be the instruction of the Indians, “and also 
of English youth and any others.” So that the objects of the con¬ 
tributors and the incorporating act were the same,—the promo¬ 
tion of Christianity and of education generally, not the interests 
of New Hampshire particularly. * * * 

Yet a question remains to be considered of more real difficulty, 
on which more doubt has been entertained than on all that have 
been discussed. The founders of the college, at least those whose 
contributions were in money, have parted with the property be¬ 
stowed upon it, and their representatives have no interest in that 
property. The donors of land are equally without interest so long 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 475 

as the corporation shall exist. Could they be found, they are 
unaffected by any alteration in its constitution, and probably re¬ 
gardless of its form or even of its existence. The students are 
fluctuating, and no individual among our youth has a vested in¬ 
terest in the institution which can be asserted in a court of justice. 
Neither the founders of the college, nor the youth for whose ben¬ 
efit it was founded, complain of the alteration made in its charter, 
or think themselves injured by it. The trustees alone complain, 
and the trustees have no beneficial interest to be protected. Can 
this be such a contract as the Constitution intended to withdraw 
from the power of state legislation? Contracts, the parties to 
which have a vested beneficial interest, and those only, it has been 
said, are the objects about which the Constitution is solicitous, 
and to which its protection is extended. 

The court has bestowed on this argument the most deliberate 
consideration, and the result will be stated. Dr. Wheelock, acting 
for himself and for those who, at his solicitation, had made con¬ 
tributions to his school, applied for this charter, as the instru¬ 
ment which should enable him and them to perpetuate their benefi¬ 
cent intention. It was granted. An artificial, immortal being was 
created by the crown, capable of receiving and distributing forever, 
according to the will of the donors, the donations which should 
be made to it. On this being, the contributions which had been 
collected were immediately bestowed. These gifts were made, 
not indeed to make a profit for the donors or their posterity, but 
for something, in their opinion, of inestimable value; for some¬ 
thing which they deemed a full equivalent for the money with 
which it was purchased. The consideration for which they stip¬ 
ulated, is the perpetual application of the fund to its object, in the 
mode prescribed by themselves. Their descendants may take no 
interest in the preservation of this consideration. But in this re¬ 
spect their descendants are not their representatives. They are 
represented by the corporation. The corporation is the assignee of 
their rights, stands in their place, and distributes their bounty, 
as they would themselves have distributed it had they been im¬ 
mortal. So with respect to the students who are to derive learn¬ 
ing from this source. The corporation is a trustee for them also. 
Their potential rights, which, taken distributively, are impercepti¬ 
ble, amount collectively to a most important interest. These are, 
in the aggregate, to be exercised, asserted, and protected by the 
corporation. * * * 

This is plainly a contract to which the donors, the trustees, and 
the crown (to whose rights and obligations New Hampshire suc¬ 
ceeds) were the original parties. It is a contract made on a val¬ 
uable consideration. It is a contract for the security and dis¬ 
position of property. It is a contract on the faith of which real 


47G 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


and personal estate has been conveyed to the corporation. It is 
then a contract within the letter of the Constitution, and within its 
spirit also, unless the fact that the property is invested by the 
donors in trustees for the promotion of religion and education, for 
the benefit of persons who are perpetually changing, though the 
objects remain the same, shall create a particular exception, tak¬ 
ing this case out of the prohibition contained in the Constitution. 

It is more than possible that the preservation of rights of this 
description was not particularly in the view of the framers of the 
Constitution when the clause under consideration was introduced 
into that instrument. It is probable that interferences of more 
frequent recurrence, to which the temptation was stronger and of 
which the mischief was more extensive, constituted the great mo¬ 
tive for imposing this restriction on the state legislatures. But 
although a particular and a rare case may not in itself be of suf¬ 
ficient magnitude to induce a rule, yet it must be governed by the 
rule, when established, unless some plain and strong reason for 
excluding it can be given. It is not enough to say that this par¬ 
ticular case was not in the mind of the convention when the article 
was framed, nor of the American people when it was adopted. 
It is necessary to go farther, and to say that, had this particular 
case been suggested, the language would have been so varied as 
to exclude it, or it would have been made a special exception. The 
case, being within the words of the rule, must be within its op¬ 
eration likewise, unless there be something in the literal construc¬ 
tion so obviously absurd, or mischievous, or repugnant to the 
general spirit of the instrument as to justify those who expound 
the Constitution in making it an exception. 

On what safe and intelligible ground can this exception stand? 
There is no expression in the Constitution, no sentiment delivered 
by its contemporaneous expounders, which would justify us in 
making it. In the absence of all authority of this kind, is there,, 
in the nature and reason of the case itself, that which would sus¬ 
tain a construction of the Constitution not warranted by its words? 
Are contracts of this description of a character to excite so little 
interest that we must exclude them from the provisions of the 
Constitution, as being unworthy of the attention of those who 
framed the instrument? Or does public policy so imperiously 
demand their remaining exposed to legislative alteration as to 
compel us, or rather permit us to say, that these words, which 
were introduced to give stability to contracts, and which in their 
plain import comprehend this contract, must yet be so construed 
as to exclude it? * * ^ 

All feel that these objects are not deemed unimportant in the 
United States. The interest which this case has excited proves 
that they are not. The framers of the Constitution did not deem. 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 477 

them unworthy of its care and protection. They have, though 
in a different mode, manifested their respect for science by reserv¬ 
ing to the government of the Union the power “to promote the 
progress of science and useful arts, by securing for limited times, 
to authors and inventors, the exclusive right to their respective 
writings and discoveries.” They have so far withdrawn science 
and the useful arts from the action of the state governments. 
Why, then, should they be supposed so regardless of contracts 
made for the advancement of literature as to intend to exclude 
them from provisions made for the security of ordinary contracts 
between man and man? No reason for making this supposition is 
perceived. 

If the insignificance of the object does not require that we should 
exclude contracts respecting it from the protection of the Consti¬ 
tution; neither, as we conceive, is the policy of leaving them subject 
to legislative alteration so apparent as to require a forced con¬ 
struction of that instrument in order to effect it. These eleemosy¬ 
nary institutions do not fill the place which would otherwise be 
occupied by government, but that which would otherwise remain 
vacant. They are complete acquisitions to literature. They are 
donations to education; donations which any government must 
be disposed rather to encourage than to discountenance. It re¬ 
quires no very critical examination of the human mind to enable 
us to determine that one great inducement to these gifts is the 
conviction felt by the giver that the disposition he makes of them is 
immutable. It is probable that no man ever was, and that no man 
ever will be, the founder of a college, believing at the time that 
an act of incorporation constitutes no security for the institution; 
believing that it is immediately to be deemed a public institution, 
whose funds are to be governed and applied, not by the will of 
the donor, but by the will of the legislature. All such gifts are 
made in the pleasing, perhaps delusive, hope that the charity will 
flow forever in the channel which the givers have marked out for 
it. If every man finds in his own bosom strong evidence of the 
universality of this sentiment, there can be but little reason to 
imagine that the framers of our Constitution were strangers to 
it; and that, feeling the necessity and policy of giving permanence 
and security to contracts, of withdrawing them from the influence 
of legislative bodies, whose fluctuating policy and repeated inter¬ 
ferences produced the most perplexing and injurious embarrass¬ 
ments, they still deemed it necessary to leave these contracts sub¬ 
ject to those interferences. The motives for such an exception 
must be very powerful to justify the construction which makes 

j|- * sK * 

The opinion of the court, after mature deliberation is, that this 
is a contract, the obligation of which cannot be impaired without 


478 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


violating the Constitution of the United States. This opinion 
appears to us to be equally supported by reason and by the former 
decisions of this court, 

2. We next proceed to the inquiry whether its obligation has 
been impaired by those acts of the Legislature of New Hamp¬ 
shire to which the special verdict refers. * * * 

On the effect of this law two opinions cannot be entertained. 
Between acting directly and acting through the agency of trustees 
and overseers no essential difference is perceived. The whole 
power of governing the college is transferred from trustees ap¬ 
pointed according to the will of the founder, expressed in the char¬ 
ter, to the executive of New Hampshire. The management and 
application of the funds of this eleemosynary institution, which 
are placed by the donors in the hands of trustees named in the 
charter, and empowered to perpetuate themselves, are placed by 
this act under the control of the government of the state. The 
will of the state is substituted for the will of the donors in every 
essential operation of the college. This is not an immaterial change. 
The founders of the college contracted, not merely for the per¬ 
petual application of the funds which they gave to the objects for 
which those funds were given, they contracted also to secure that 
application by the constitution of the corporation. They con¬ 
tracted for a system which should, as far as human foresight can 
provide, retain forever the government of the literary institution 
they had formed, in the hands of persons approved by themselves. 
This system is totally changed. The charter of 1769 exists no 
longer. It is reorganized, and reorganized in such a manner as to 
convert a literary institution, moulded according to the will of its 
founders and placed under the control of private literary men, into 
a machine entirely subservient to the will of government. This 
may be for the advantage of this college in particular, and may 
be for the advantage of literature in general; but it is not ac¬ 
cording to the will of the donors, and is subversive of that con¬ 
tract on the faith of which their property was given. ^ ^ * 

Judgment reversed. 

[Washington and Story, JJ., gave concurring opinions. Liv¬ 
ingston, J., concurred in all the opinions, Johnson, J., concurred 
in Chief Justice Marshall's opinion, and Duvall, J., dissented.] 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 


479 


CHARLES RIVER BRIDGE v. WARREN BRIDGE. 

(Supreme Court of United States, 1837. 11 Pet. 420, 9 L. Ed. 773.) 

[Error to the Massachusetts Supreme Court. In 1785 Massa¬ 
chusetts by statute incorporated a company, “The Proprietors of 
the Charles River Bridge,” empowered to erect a bridge between 
Boston and Charleston in the place where there was then a ferry, 
and to take certain tolls for the use thereof. The charter was lim¬ 
ited to 40 years and until its expiration the company was to pay 
£200, annually to Harvard College, which had owned the ferry 
superseded by the bridge. The bridge was opened in 1786, and in 
1792 the company charter was extended to 70 years. In 1828 
Massachusetts incorporated the Warren Bridge Company to erect 
another bridge over the Charles river a few rods from the first 
bridge. The new bridge was to be a free bridge at the end of 
6 years, or sooner if the tolls paid its cost before then. The orig¬ 
inal bridge company asked an injunction in the state courts against 
the erection and use of the Warren bridge, which was denied by 
an equal division of the state Supreme Court. This writ of error 
was then taken. Before its argument the Warren bridge had be¬ 
come free.] 

Mr. Chief Justice Tane:y. * ♦ [After discussing the orig¬ 

inal ferry franchise and other matters unconnected with the con¬ 
tract clause of the Constitution:] This brings us to the act of the 
legislature of Massachusetts, of 1785, by which the plaintiffs were 
incorporated by the name of “The Proprietors of the Charles River 
Bridge”; and it is here, and in the law of 1792, prolonging their 
charter, that we must look for the extent and nature of the fran¬ 
chise conferred upon the plaintiffs. 

Much has been said in the argument of the principles of construc¬ 
tion by which this law is to be expounded, and what undertak¬ 
ings, on the part of the state, may be implied. The court think 
there can be no serious difficulty on that head. It is the grant of 
certain franchises by the public to a ,private corporation, and in 
a matter where the public interest is concerned. The rule of con¬ 
struction in such cases is well settled, both in England and by the 
decisions of our own tribunals. In 2 Barn. & Adol. 793, in the 
case of the Proprietors of the Stourbridge Canal against Wheely 
and others, the court say: “The canal having been made under 
an act of Parliament, the rights of the plaintiffs are derived en¬ 
tirely from that act. This, like many other cases, is a bargain 
between a company of adventurers and the public, the terms of 
which are expressed in the statute; and the rule of construction, 
in all such cases, is now fully established to be this: that any 
ambiguity in the terms of the contract must operate against the 
adventurers, and in favor of the public, and the plaintiffs can claim 


480 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

nothing that is not clearly given them by the act.” And the doc¬ 
trine thus laid down is abundantly sustained by the authorities 
referred to in this decision. The case itself was as strong a one 
as could well be imagined for giving to the canal company, by 
implication, a right to the tolls they demanded. Their canal had 
been used by the defendants, to a very considerable extent, in 
transporting large quantities of coal. The rights of all persons to 
navigate the canal were expressly secured by the act of parlia¬ 
ment; so that the company could not prevent them from using it, 
and the toll demanded was admitted to be reasonable. Yet, as 
they only used one of the levels of the canal, and did not pass 
through the locks; and the statute, in giving the right to exact 
toll, had given it for articles which passed “through any one or 
more of the locks,” and had said nothing as to toll for navigating 
one of the levels; the court held that the right to demand toll, in 
the latter case, could not be implied, and that the company were 
not entitled to recover it. This was a fair case for an equitable 
construction of the act of incorporation, and for an implied grant; 
if such a rule of construction could ever be permitted in a law of 
that description. For the canal had been made at the expense of 
the company; the defendants had availed themselves of the fruits 
of their labors, and used the canal freely and extensively for their 
own profit. Still the right to exact toll could not be implied, be¬ 
cause such a privilege was not found in the charter. 

Borrowing, as we have done, our system of jurisprudence from 
the English law; and having adopted, in every other case, civil 
and criminal, its rules for the construction of statutes; is there 
anything in our local situation, or in the nature of our political 
institutions, which should lead us to depart from the principle 
where corporations are concerned? Are we to apply to acts of in¬ 
corporation a rule of construction differing from that of the Eng¬ 
lish law, and, by implication, make the terms of a charter in one 
of the states, more unfavorable to the public, than upon an act of 
parliament, framed in the same words, would be sanctioned in an 
English court? Can any good reason be assigned for excepting 
this particular class of cases from the operation of the general 
principle, and for introducing a new and adverse rule of construc¬ 
tion in favor of corporations, while we adopt and adhere to the 
rules of construction known to the English common law, in every 
other case, without exception? We think not; and it would pre¬ 
sent a singular spectacle, if, while the courts in England are re¬ 
straining, within the strictest limits, the spirit of monopoly, and 
exclusive privileges in nature of monopolies, and confining corpo¬ 
rations to the privileges plainly given to them in their charter, the 
courts of this country should be found enlarging these privileges 
by implication; and construing a statute more unfavorably to the 
public, and to the rights of the community, than would be done 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 481 

in a like case in an English court of justice. * * ^ [Here fol¬ 

lows a brief discussion of several cases, the chief of which, Prov¬ 
idence Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939 (1830), decided 
that a charter incorporating a bank with the usual powers carried 
with it no exemption from state taxation upon the banking busi¬ 
ness.] 

The case now before the court is, in principle, precisely the same. 
It is a charter from a state. The act of incorporation is silent in 
relation to the contested power. The argument in favor of the 
Proprietors of the Charles River Bridge is the same, almost in 
words, with that used by the Providence Bank; that is, that the 
power claimed by the state, if it exists, may be so used as to de¬ 
stroy the value of the franchise they have granted to the corpora¬ 
tion. The argument must receive the same answer; and the fact 
that the power has been already exercised so as to destroy the 
value of the franchise, cannot in any degree aflect the principle. 
The existence of the power does not, and cannot, depend upon the 
circumstance of its having been exercised or not. 

It may, perhaps, be said, that in the case of the Providence 
Bank, this court were speaking of the taxing power; which is of 
vital importance to the very existence of every government. But 
the object and end of all government is to promote the happiness 
and prosperity of the comrhunity by which it is established; and it 
can never be assumed, that the government intended to diminish 
its power of accomplishing the end for which it was created. And 
in a country like ours, free, active, and enterprising, continually 
advancing in numbers and wealth, new channels of communica¬ 
tion are daily found necessary, both for travel and trade; and are 
essential to the comfort, convenience, and prosperity of the people. 
A state ought never to be presumed to surrender this power, be¬ 
cause, like the taxing power, the whole community have an inter¬ 
est in preserving it undiminished. And when a corporation al¬ 
leges, that a state has surrendered, for seventy years, its power 
of improvement and public accommodation, in a great and im¬ 
portant line of travel, along which a vast number of its citizens 
must daily pass, the community have a right* to insist, in the lan¬ 
guage of this court above quoted, ^‘that its abandonment ought 
not to be presumed in a case in which the deliberate purpose of 
the state to abandon it does not appear.” The continued existence 
of a government would be of no great value, if by implications 
and presumptions it was disarmed of the powers necessary to 
accomplish the ends of its creation; and the functions it was de¬ 
signed to perform, transferred to the hands of privileged corpora¬ 
tions. The rule of construction announced by the court was not 
confined to the taxing power; nor is it so limited in the opinion de¬ 
livered. On the contrary, it was distinctly placed on the ground 
Hall Cases Const.L.—31 


482 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


that the interests of the community were concerned in preserving, 
undiminished, the power then in question; and whenever any 
power of the state is said to be surrendered or diminished, whether 
it be the taxing power or any other affecting the public interest, 
the same principle applies, and the rule of construction must be 
the same. No one will question that the interests of the great 
body of the people of the state would, in this instance, be affected 
by the surrender of this great line of travel to a single corporation, 
with the right to exact toll, and exclude competition for seventy 
years. While the rights of private property are sacredly guarded, 
we must not forget that the community also have rights, and that 
the happiness and well-being of every citizen depends on their 
faithful preservation. 

Adopting the rule of construction above stated as the settled 
one, we proceed to apply it to the charter of 1785 to the Propri¬ 
etors of the Charles River Bridge. ^ ^ ^ The relative position 
of the Warren Bridge has already been described. It does not in¬ 
terrupt the passage over the Charles River Bridge, nor make the 
way to it or from it less convenient. None of the faculties or fran¬ 
chises granted to that corporation have been revoked by the legis¬ 
lature; and its right to take the tolls granted by the charter re¬ 
mains unaltered. In short, all the franchises and rights of prop¬ 
erty enumerated in the charter, and there mentioned to have been 
granted to it remain unimpaired. But its income is destroyed by 
the Warren Bridge; which, being free, draws off the passengers 
and property which would have gone over it, and renders their 
franchise of no value. This is the gist of the complaint. For it 
is not pretended that the erection of the Warren Bridge would 
have done them any injury, or in any degree affected their right of 
property, if it had not diminished the amount of their tolls. In 
order then to entitle themselves to relief, it is necessary to show 
that the legislature contracted not to do the act of which they 
complain; and that they impaired or, in other words, violated that 
contract by the erection of the Warren Bridge. 

The inquiry then is, does the charter contain such a contract on 
the part of the state? Is there any such stipulation to be found 
in that instrument? It must be admitted on all hands, that there 
is none,—no words that even relate to another bridge, or to the 
diminution of their tolls, or to the line of travel. If a contract on 
that subject can be gathered from the charter, it must be by im¬ 
plication, and cannot be found in the words used. Can such an 
agreement be implied? The rule of construction before stated is 
an answer to the question. In charters of this description, no 
rights are taken from the public, or given to the corporation, be¬ 
yond those which the words of the charter, by their natural and 
proper construction, purport to convey. There are no words 


LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 483 

which import such a contract as the plaintiffs in error contend for, 
and none can be implied; and the same answer must be given to 
them that was given by this court to the Providence Bank. The 
whole community are interested in this inquiry, and they have a 
right to require that the power of promoting their comfort and 
convenience, and of advancing the public prosperity, by providing 
safe, convenient, and cheap ways for the transportation of produce 
and the purposes of travel, shall not be construed to have been sur¬ 
rendered or diminished by the state, unless it shall appear by plain 
words that it was intended to be done. * * 

And what would be the fruits of this doctrine of implied con¬ 
tracts on the part of the states, and of property in a line of travel 
by a corporation, if it should now be sanctioned by this court? To 
what results would it lead us? If it is to be found in the charter 
to this bridge, the same process of reasoning must discover it, in 
the various acts which have been passed, within the last forty 
years, for turnpike companies. And what is to be the extent of 
the privileges of exclusion on the different sides of the road? The 
counsel who have so ably argued this case have not attempted to 
define it by any certain boundaries. How far must the new im¬ 
provement be distant from the old one? How near may you 
approach without invading its rights in the privileged line? If this 
court should establish the principles now contended for, what is 
to become of the numerous railroads established on the same line 
of travel with turnpike companies; and which have rendered the 
franchises of the turnpike corporations of no value? Let it once 
be understood that such charters carry with them these implied 
contracts, and give this unknown and undefined property in a line 
of travelling, and you will soon find the old turnpike corporations 
awakening from their sleep and calling upon this court to put 
down the improvements which have taken their place. The mil¬ 
lions of property which have been invested in railroads and canals 
upon lines of travel which had been before occupied by turnpike 
corporations will be put in jeopardy. We shall be thrown back to 
the improvements of the last century, and obliged to stand still 
until the claims of the old turnpike corporations shall be satisfied, 
and they shall consent to permit these states to avail themselves 
of the lights of modern science, and to partake of the benefit of 
those improvements which are now adding to the wealth and pros¬ 
perity, and the convenience and comfort, of every other part of the 
civilized world. Nor is this all. This court will find itself com¬ 
pelled to fix, by some arbitrary rule, the width of this new kind of 
property in a line of travel; for if such a right of property exists, 
we have no lights to guide us in marking out its extent, unless, 
indeed, we resort to the old feudal grants, and to the exclusive 
rights of ferries, by prescription, between towns, and are prepared 


484 LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 

to decide that when a turnpike road from one town to another had 
been made, no railroad or canal, between these two points, could 
afterwards be established. This court are not prepared to sanc¬ 
tion principles which must lead to such results. ^ ^ ^ 

Judgment affirmed. 

[McLe^an, J., concurred in the result. Story, J., gave an elabor¬ 
ate dissenting opinion, in which Thompson, J., concurred.] 


PIQUA BRANCH OF STATE BANK OF OHIO v. KNOOP. 

(Supreme Court of United States, 1853. 16 How. 369, 14 L. Ed. 977.) 

[Error to Ohio Supreme Court. An Ohio statute of 1845 au¬ 
thorized the incorporation of banks subject to the provisions of 
the act. It provided that each company accepting the act and 
complying therewith should pay 6 per cent, of its semi-annual 
profits to the state, in lieu of all taxes to which the company or its 
stockholders would otherwise be subject. The Piqua Bank was 
organized under this act in 1847, as a branch of the State Bank of 
Ohio. In 1851 a state statute purported to subject the capital 
stock, surplus, and contingent fund of banks in the state to the 
same taxation as other personal property. The state’s suit against 
the Piqua Branch for taxes under the act of 1851 was sustained by 
the state courts, and this writ of error was taken.] 

Mr. Justice McLkan. * hj * g state, by ex¬ 

empting from taxation certain property, parts with a portion of 
its sovereignty, is of modern growth; and so is the argument that 
if a state may part with this in one instance it may in every other, 
so as to divest itself of the sovereign power of taxation. Such an 
argument would be as strong and as conclusive against the ex¬ 
ercise of the taxing power. For if the legislature may levy a tax 
upon property, they may absorb the entire property of the tax¬ 
payer. The same may be said of every power where there is an 
exercise of judgment. * * * 

The assumption that a state, in exempting certain property from 
taxation, relinquishes a part of its sovereign power, is unfounded. 
The taxing power may select its objects of taxation; and this is 
generally regulated by the amount necessary to answer the pur¬ 
poses of the state. Now the exemption of property from taxation 
is a question of policy and not of power. A sound currency should 
be a desirable object to every government; and this in our country 
is secured generally through the instrumentality of a well-regu¬ 
lated system of banking. To establish such institutions as shall 
meet the public wants and secure the public confidence, induce¬ 
ments must be held ou,t to capitalists to invest their funds. They 
must know the rate of interest to be charged by the bank, the time 



LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


485 


the charter shall run, the liabilities of the company, the rate of 
taxation, and other privileges necessary to a successful banking 
operation. 

These privileges are proffered by the state, accepted by the 
stockholders, and in consideration funds are invested in the bank. 
Here is a contract by the state and the bank, a contract founded 
upon considerations of policy required by the general interests of 
the community, a contract protected by the laws of England and 
America, and by all civilized states where the common or the civil 
law is established. * * * 

There is no constitutional objection to the exercise of the power 
to make a binding contract by a state. It necessarily exists in its 
sovereignty, and it has been so held by all the courts in this coun¬ 
try. A denial of this is a denial of state sovereignty. It takes 
from the state a power essential to the discharge of its functions 
as sovereign. If it do not possess this attribute, it could not com¬ 
municate it to others. There is no power possessed by it more es¬ 
sential than this. Through the instrumentality of contracts, the 
machinery of the government is carried on. Money is borrowed, 
and obligations given for payment. Contracts are made with in¬ 
dividuals, who give bonds to the state. So in the granting of 
charters. If there be any force in the argument, it applies to con¬ 
tracts made with individuals, the same as with corporations. But 
it is said the state cannot barter away any part of its sovereignty. 
No one ever contended that it could. 

A state, in granting privileges to a bank, with a view of afford¬ 
ing a sound currency, or of advancing any policy connected with 
the public interest, exercises its sovereignty, and for a public pur¬ 
pose, of which it is the exclusive judge. Under such circumstanc¬ 
es, a contract made for a specific tax, as in the case before us, is 
binding. This tax continues, although all other banks should be 
exempted from taxation. Having the power to make the contract, 
and rights becoming vested under it, it can no more be disregarded 
nor set aside by a subsequent legislature, than a grant for land. 
This act, so far from parting with any portion of the sovereignty, 
is an exercise of it. Can any one deny this power to the legis¬ 
lature? Has it not a right to select the objects of taxation and 
determine the amount? To deny either of these, is to take away 
state sovereignty. 

It must be admitted that the state has the sovereign power to do 
this, and it would have the sovereign power to impair or annul a 
contract so made, had not the Constitution of the United States 
inhibited the exercise of such a power. The vague and undefined 
and indefinable notion, that every exemption from taxation or a 
specific tax, which withdraws certain objects from the general tax 
law, affects the sovereignty of the state, is indefensible. 


486 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

There has been rarely, if ever, it is believed, a tax law passed 
by any state in the Union, which did not contain some exemptions 
from general taxation. The act of Ohio of the 25th of March, 1851, 
in the fifty-eighth section, declared that “the provisions of that act 
shall not extend to any joint-stock company which now is, or may 
hereafter be organized, whose charter or act of incorporation shall 
have guaranteed to such company an exemption from taxation, or 
has prescribed any other as the exclusive mode of taxing the 
same.” Here is a recognition of the principle now repudiated. In 
the same act, there are eighteen exemptions from taxation. 

The federal government enters into an arrangement with a for¬ 
eign state for reciprocal duties on imported merchandise, from the 
one country to the other. Does this affect the sovereign power 
of either state? The sovereign power in each was exercised in 
making the compact, and this was done for the mutual advantage 
of both countries. Whether this be done by treaty, or by law, is 
immaterial. The compact is made, and it is binding on both coun¬ 
tries. 

The argument is, and must be, that a sovereign state may make 
a binding contract with one of its citizens, and, in the exercise of 
its sovereignty, repudiate it. The Constitution of the Union, when 
first adopted, made states subject to the federal judicial power. 
Could a state, while this power continued, being sued for a debt 
contracted in its sovereign capacity, have repudiated it in the same 
capacity? In this respect the Constitution was very properly 
changed, as no state should be subject to the judicial power gen¬ 
erally. 

Much stress was laid on the argument, and in the decisions of 
the Supreme Court, on the fact that the banks paid no bonus for 
their charters, and that no contract can be binding which is not 
mutual. This is a matter which can have no influence in deciding 
the legal question. The state did not require a bonus, but other 
requisitions are found in the charter, which the legislature deemed 
sufficient, and this is not questionable by any other authority. 
The obligation is as strong on the state, from the privileges grant¬ 
ed and accepted, as if a bonus had been paid. ♦ * * 

Judgment reversed. 

[Tane:y, C. J., gave a concurring opinion. Catron, DanieJl, and 
Campbe:ll, JJ-, gave dissenting opinions.]^ 

4 The grounds of this dissent are indicated by the following extract from a 
similar dissenting opinion of Miller, J., sixteen years later, in Washington 
University v. Rouse, 8 Wall. 439, 443, 444, 19 L. Ed. 498 (1869): “We do not 
believe that any legislative body, sitting under a state Constitution of the 
usual character, has a right to sell, to give, or to bargain away forever the tax¬ 
ing power of the state. This is a power which, in modern political socie¬ 
ties, is absolutely necessary to the continued existence of every such society. 
While under such forms of government, the ancient chiefs or heads of the 
government might carry it on by revenues owned by them personally, and 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 


487 


VON HOFFMAN v. QUINCY. 

(Supreme Court of United States, 18G6. 4 Wall. 535, 18 L. Ed. 403.) 

[Error to the United States Circuit Court for the Southern Dis¬ 
trict of Illinois. The city of Quincy, Ill., issued bonds in aid of 
railroads, under statutes authorizing the levy of a special tax upon 
property therein sufficient to pay the annual interest on such bonds 
and to be devoted to this purpose only. A subsequent statute re¬ 
duced the city’s taxing powers for debts and general expenses to 
F2 per cent., which would leave nothing for these bonds after pay¬ 
ing current expenses. Von Hofifman petitioned in the above-named 
court for a mandamus to compel the city and its officers to levy 
taxes under the original acts and pay a judgment for interest on 
said bonds, which he had recovered against the city. Upon judg¬ 
ment for the city upon his petition. Von Hoffman took this writ of 
error.] 

Mr. Justice Swaynr. * ^ {q * * * settled that the 

laws which subsist at the time and place of the making of a con¬ 
tract, and where it is to be performed, enter into and form a part 
of it, as if they were expressly referred to or incorporated in its 
terms. This principle embraces alike those which affect its valid¬ 
ity, construction, discharge, and enforcement. Illustrations of this 
proposition are found, in the obligation of the debtor to pay inter- 

by the exaction of personal service from their subjects, no civilized govern¬ 
ment has ever existed that did not depend upon taxation in some form for the 
continuance of that existence. To hold, then, that any one of the annual leg¬ 
islatures can, by contract, deprive the state forever of the power of taxation, 
is to hold that they can destroy the government which they are appointed 
to serve, and that their action in that regard is strictly lawful. It cannot be 
maintained, that this power to bargain away, for an unlimited time, the right 
of taxation, if it exist at all, is limited, in reference to the subjects of tax¬ 
ation. In all the discussion of this question, in this court and elsewhere, no 
such limitation has been claimed. If the legislature can exempt in perpetu¬ 
ity, one piece of land, it can exempt all land. If it can exempt all land, it 
can exempt all other property. It can, as well, exempt persons as corpora¬ 
tions. And no hindrance can be seen, in the principle adopted by the court, 
to rich corporations, as railroads and express companies, or rich men, mak¬ 
ing contracts with the legislatures, as they best may, and with such appli¬ 
ances as it is known they do use, for perpetual exemption from all the bur¬ 
dens of supporting the government. The result of such a principle, under the 
growing tendency to special and partial legislation, would be, to exempt the 
rich from taxation, and cast all the burden of the support of government, 
and the payment of its debts, on those who are too poor or too honest to 
purchase such immunity. With as full respect for the authority of former 
decisions, as belongs, from teaching and habit, to judges trained in the com¬ 
mon-law system of jurisprudence, we think that there may be questions touch¬ 
ing the powers of legislative bodies, which can never be finally closed by the 
decisions of a court, and that the one we have here considered is of this char¬ 
acter. We are strengthened, in this view of the subject, by the fact that a 
series of dissents, from this doctrine, by some of our predecessors, shows 
that it has never received the full assent of this court; and referring to those 
dissents for more elaborate defence of our views, we content ourselves with 
thus renewing the protest against a doctrine which we think must finally be 
abandonecL” 


488 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

est after the maturity of the debt, where the contract is silent; in 
the liability of the drawer of a protested bill to pay exchange and 
damages, and in the right of the drawer and indorser to require 
proof of demand and notice. These are as much incidents and con¬ 
ditions of the contract as if they rested upon the basis of a distinct 
agreement. Green v. Biddle, 8 Wheat. 92, 5 L. Ed. 547; Bronson 
V. Kinzie, 1 How. 319, 11 L. Ed. 143; McCracken v. Hayward, 2 
How. 612, 11 E. Ed. 397; People v. Bond, 10 Cal. 570; Ogden v. 
Saunders, 12 Wheat. 231, 6 L. Ed. 606. 

In Green v. Biddle, the subject of laws which affect the remedy 
was elaborately discussed. The controversy grew out of a compact 
between the states of Virginia and Kentucky. It was made in con¬ 
templation of the separation of the territory of the latter from the 
former, and its erection into a state, and is contained in an act of 
the legislature of Virginia, passed in 1789, whereby it was provided 
‘‘that all private rights and interests within” the district of Ken¬ 
tucky “derived from the laws of Virginia prior to such separation 
shall remain valid and secure under the laws of the proposed state, 
and shall be determined by the laws now existing in this state.” 
By two acts of the legislature of Kentucky, passed respectively in 
1797 and 1812, several new provisions relating to the consequences 
of a recovery in the action of ejectment—all eminently beneficial 
to the defendant, and onerous to the plaintiff—were adopted into 
the laws of that state. So far as they affected the lands covered by 
the compact, this court declared them void. It was said: “It is no 
answer that the acts of Kentucky now in question are regulations 
of the remedy, and not of the right to the lands. If these acts so 
change the nature and extent of existing remedies as materially to 
impair the rights and interests of the owner, they are just as much 
a violation of the compact as if they overturned his rights and in¬ 
terests.” 

In Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143, the subject was 
again fully considered. A mortgage was executed in Illinois con¬ 
taining a power of sale. Subsequently, an act of the legislature was 
passed which required mortgaged premises to be sold for not less 
than two-thirds of their appraised value, and allowed the mort¬ 
gagor a year after the sale to redeem. It was held that the statute, 
by thus changing the pre-existing remedies, impaired the obligation 
of the contract, and was therefore void. 

In McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397. the same 
principle, upon facts somewhat varied, was again sustained and ap¬ 
plied. A statutory provision that personal property should not be 
sold under execution for less than two-thirds of its appraised value 
was adjudged, so far as it affected prior contracts, to be void, for 
the same reason. * * * 

A statute of frauds embracing a pre-existing parol contract not 
before required to be in writing would affect its validity. A statute 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 489 

declaring that the word ‘‘ton” should thereafter be held, in prior as 
well as subsequent contracts, to mean half or double the weight be¬ 
fore prescribed, would affect its construction. A statute providing 
that a previous contract of indebtment may be extinguished by a 
process of bankruptcy would involve its discharge, and a statute 
forbidding the sale of any of the debtor’s property, under a judg¬ 
ment upon such a contract, would relate to the remedy. 

It cannot be doubted, either upon principle or authority, that 
each of such laws passed by a state would impair the obligation of 
the contract, and the last-mentioned not less than the first. Noth¬ 
ing can be more material to the obligation than the means of en¬ 
forcement. Without the remedy the contract may, indeed, in the 
sense of the law, be said not to exist, and its obligation to fall with¬ 
in the class of those moral and social duties which depend for their 
fulfilment wholly upon the will of the individual. The ideas of 
validity and remedy are inseparable, and both are parts of the ob¬ 
ligation, which is guaranteed by the Constitution against invasion. 
The obligation of a contract “is the law which binds the parties to 
perform their agreement.” Sturges v. Crowninshield, 4 Wheat. 
157, 4 L. Ed. 529. The prohibition has no reference to the degree 
of impairment. The largest and least are alike forbidden. In 
Green v. Biddle, 8 Wheat. 84, 5 L. Ed. 547, it was said: “The ob¬ 
jection to a law on the ground of its impairing the obligation of a 
contract can never depend upon the extent of the change which the 
law effects in it. Any deviation from its terms by postponing or 
accelerating the period of performance which it prescribes, impos¬ 
ing conditions not expressed in the contract, or dispensing with 
those which are, however minute or apparently immaterial in their 
effect upon the contract of the parties, impairs its obligation. Up¬ 
on this principle it is that if a creditor agree with his debtor to 
postpone the day of payment, or in any other way to change the 
terms of the contract, without the consent of the surety, the lat¬ 
ter is discharged, although the change was for his advantage.” 

“One of the tests that a contract has been impaired is that its 
value has, by legislation, been diminished. It is not, by the Con¬ 
stitution, to be impaired at all. This is not a question of degree or 
cause, but of encroaching, in any respect, on its obligation—dis¬ 
pensing with any part of its force.” Planters’ Bank v. Sharp et ah, 
6 How. 327, 12 L. Ed. 447. 

This has reference to legislation which affects the contract di¬ 
rectly, and not incidentally or only by consequence. 

The right to imprison for debt is not a part of the contract. It is 
regarded as penal rather than remedial. The states may abolish it 
whenever they think proper. Beers v. Haughton, 9 Pet. 359, 9 L. 
Ed. 145; Ogden v. Saunders, 12 Wheat. 230, 6 L. Ed. 606; Mason 
V. Haile, 12 Wheat. 373, 6 L. Ed. 660; Sturges v. Crowninshield, 4 
Wheat. 200, 4 L. Ed. 529. They may also exempt from sale, under 


490 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 

execution, the necessary implements of agriculture, the tools of a 
mechanic, and articles of necessity in household furniture. It is 
said: “Regulations of this description have always been consider¬ 
ed in every civilized community as properly belonging to the rem¬ 
edy, to be exercised by every sovereignty according to its own 
views of policy and humanity.” 

It is competent for the states to change the form of the remedy, 
or to modify it otherwise, as they may see fit, provided no substan¬ 
tial right secured by the contract is thereby impaired. No attempt 
has been made to fix definitely the line between alterations of the 
remedy, which are to be deemed legitimate, and those which, under 
the form of modifying the remedy, impair substantial rights. Ev¬ 
ery case must be determined upon its own circumstances. When¬ 
ever the result last mentioned is produced, the act is within the 
prohibition of the Constitution, and to that extent void. Bronson 
V. Kinzie, 1 How. 311, 11 L. Ed. 143; McCracken v. Hayward, 2 
How. 608, 11 L. Ed. 397. 

If these doctrines were res integrse the consistency and soundness 
of the reasoning which maintains a distinction between the con¬ 
tract and the remedy—or, to speak more accurately, between the 
remedy and the other parts of the contract—might perhaps well be 
doubted. 1 Kent’s Commentaries, 456; Sedgwick on Stat. and 
Cons. Law, 652; Mr. Justice Washington’s dissenting opinion in 
Mason v. Haile, 12 Wheat. 379, 6 L. Ed. 660. But they rest in this 
court upon a foundation of authority too firm to be shaken; and 
they are supported by such an array of judicial names that it is 
hard for the mind not to feel constrained to believe they are cor¬ 
rect. The doctrine upon the subject established by the latest ad¬ 
judications of this court render the distinction one rather of form 
than substance. 

When the bonds in question were issued, there were laws in 
force which authorized and required the collection of taxes suffi¬ 
cient in amount to meet the interest, as it accrued from time to 
time, upon the entire debt. But for the act of the 14th of Feb¬ 
ruary, 1863, there would be no difficulty in enforcing them. The 
amount permitted to be collected by that act will be insufficient; 
and it is not certain that anything will be yielded applicable to that 
object. To the extent of the deficiency the obligation of the con¬ 
tract will be impaired, and if there be nothing applicable, it may be 
regarded as annulled. A right without a remedy is as if it were 
not. For every beneficial purpose it may be said not to exist. 

It is well settled that a state may disable itself by contract from 
exercising its taxing power in particular cases. New Jersey v. Wil¬ 
son, 7 Cranch, 166, 3 L. Ed. 303; Dodge v. Woolsey, 18 How. 331, 
15 L. Ed. 401; Piqua Branch v. Knoop, 16 How. 369, 14 L. Ed. 977. 
It is equally clear that where a state has authorized a municipal 
corporation to contract and to exercise the power of local taxation 


LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 491 

to the extent necessary to meet its engagements, the power thus 
given cannot be withdrawn until the contract is satisfied. The state 
and the corporation, in such cases, are equally bound. The power 
given becomes a trust which the donor cannot annul, and which the 
donee is bound to execute; and neither the state nor the corpora¬ 
tion can any more impair the obligation of the contract in this way 
than in any other. People v. Bond, 10 Cal. 570; Dominic v. Sayre, 
5 N. Y. Super. Ct. 555. 

The laws requiring taxes to the requisite amount to be collected, 
in force when the bonds were issued, are still in force for all the 
purposes of this case. The act of 1863 is, so far as it affects these 
bonds, a nullity. It is the duty of the city to impose and collect 
the taxes in all respects as if that act had not been passed. A dif¬ 
ferent result would leave nothing of the contract but an abstract 
right, of no practical value, and render the protection of the Con¬ 
stitution a shadow and a delusion. * ^ * 

Judgment reversed. 


492 


BETROACTIVE LAWS 


RETROACTIVE LAWS " 


INHABITANTS OF GOSHEN v. INHABITANTS OF STON< 

INGTON. 

(Supreme Court of Errors of Connecticut, 1822. 4 Conn. 209, 10 Am. Dec. 121.) 

[Motion for new trial. Joseph Cooke was legally settled in the 
town of Stonington, and in 1807 was married to Betsey Cooke by 
an ordained but itinerant minister of the Methodist church. The 
statute law then in force gave no validity to such marriages unless 
the minister were settled instead of itinerant. In 1820 a statute 
purported to render valid to all intents and purposes marriages 
performed by ordained ministers qualified thereto by the forms 
and usages of any religious society. If constitutional, this stat¬ 
ute validated Cooke's marriage. From 1818 to 1820 the town of 
Goshen had supported Betsey Cooke and five children of herself 
and Joseph, as paupers, and in 1821 sued to recover the expense 
thereof from Stonington, which was legally chargeable therewith 
if said marriage was valid. A verdict was found for the plaintiffs 
under a direction of the court upholding the curative statute of 
1820, and defendants moved for a new trial.] 

Hosmejr, C. J. * * * First, it was said that the retrospec¬ 

tive operation of the law may and ought to be obviated by con¬ 
struing it to intend the validation of marriages merely, without 
imparting to it any retrospection as to the rights of others. It 
must be admitted that by construction, if it can be avoided, no 
statute should have a retrospect, anterior to the time of its com¬ 
mencement. Helmore v. Shuter et al., 2 Show. 17; Dash v. Van 
Kleeck, 7 Johns. (N. Y.) 477, 485, 5 Am. Dec. 291. This principle 
is founded on the suppositiony that laws are intended to be pros¬ 
pective only. But when a statute, either by explicit provision or 
necessary implication, is retroactive, there is no room for construc¬ 
tion ; and if the law ought not to be effectuated, it must be on a 
different principle. The act of May, 1820, is, in its expression, 
inconvertibly clear and definite. It does not pause, after impart¬ 
ing validity to marriages, but confirms them “to all intents and 
purposes.” By this phraseology, they are declared to be valid ab 
initio. ^ ^ 

Secondly, it has been insisted, that the law in question is un¬ 
constitutional. There is no pretence that it is opposed to the Con¬ 
stitution of the United States; that is, that the confirmatory act is a 

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 295-299. 



RETROACTIVE LAWS 


493 


law ex post facto, or one which impairs the obligation of contracts. 
By the second article of the Constitution of Connecticut, it is 
affirmed that “the powers of government shall be divided into 
three distinct departments, and each of them confided to a separate 
magistracy, to wit—those which are legislative, to one; those 
which are executive, to another; and those which are judicial, to 
another.” The law of May, 1820, has been considered as the ex¬ 
ercise of a judiciary power, and for this reason, in contravention 
of the Constitution; but the supposition is wholly destitute of sup¬ 
port, as the act in question does not affect to give a construction 
to the former law, but most manifestly purports to impart validity 
to certain proceedings which were erroneously supposed to be 
legal and which the statute did not authorize. The power ex¬ 
ercised, in its nature, is exclusively legislative, and not opposed to 
the recited articles of the Constitution. 

Lastly, the defendants have insisted, (and on this objection the 
principal stress has been laid), that the law of May, 1820, being 
retrospective and in violation of vested rights, it is the duty of 
the court to pronounce it void. The retrospection of the act is 
indisputable, and equally so is its purpose to change the legal 
rights of the litigating parties. Whether in doing this there has 
been injustice, will be an enquiry in a subsequent part of my 
opinion. 

It is universally admitted and unsusceptible of dispute that 
there may be retrospective laws impairing vested rights which 
are unjust, neither according with sound legislation nor the funda¬ 
mental principles “of the social compact.” If, for example, the 
legislature should enact a law, without any assignable reason, 
taking from A. his estate, and giving it to B., the injustice would 
be flagrant, and the act would produce a sensation of universal 
insecurity. 

On the other hand, laws of a retroactive nature affecting the 
rights of individuals, not adverse to equitable principle and highly 
promotive of the general good, have often been passed, and as often 
approved. In the case before us, the defendants have expressly 
conceded that the law in question is valid, so far as respects the 
persons de facto married and their issue. But, in that event, would 
it not have a retrospective operation on vested rights? The man 
and woman were unmarried, notwithstanding the formal ceremony 
which passed between them, and free, in point of law, to live in 
celibacy, or contract matrimony with any person, at pleasure. It 
is a strong exercise of power, to compel two persons to marry, 
without their consent; and a palpable perversion of strict legal 
right. At the same time, the retrospective law, thus far directly 
operating on vested rights, is admitted to be unquestionably valid, 
because it is manifestly just. 


494 


RETROACTIVE LAWS 


I very much question whether there is an existing government in 
which laws of a retroactive nature and effect, impairing vested 
rights but promotive of justice and the general good, have not 
been passed. In England, such laws frequently have been enacted; 
and the act of 26 Geo. II, cap. 33, giving validity to former mar¬ 
riages celebrated in any parish church or public chapel, is precisely 
of this description. Doug. 661, note. In the neighboring state of 
Massachusets there have been many such laws (Foster et al. v. 
Essex Bank, 16 Mass, from 257 to 261, 8 Am. Dec. 135); and the 
interposition of our own legislature, in similar cases, is familiar to 
gentlemen of the profession. The judgments of courts, when by 
accident a term has fallen through, have been established; the do¬ 
ings of a committee and conservator, not strictly legal, have been 
confirmed; and other laws have been passed, all affecting vested 
rights; but, being incontrovertibly just, no disapprobation has ever 
been expressed. ^ * 

1 cannot harmonize with those who deny the power of the legis¬ 
lature to make laws in any case, which, with entire justice, operate 
on antecedent legal rights. A retrospective law may be just and 
reasonable; and the right of the legislature to enact one of this de¬ 
scription I am not speculatist enough to question. * 

act of May, 1820, was intended to quiet controversy and promote 
the public tranquility. Many marriages had been celebrated, as 
was believed, according to the prescriptions of the statute. On a 
close investigation of the subject, under the prompting scrutiny 
of interest, it was made to appear that there had been an honest 
misconstruction of the law; that many unions, which were consid¬ 
ered as matrimonial, were really meretricious; and that the settle¬ 
ment of children, in great numbers, was not in the towns of which 
their fathers were inhabitants, but in different places. To furnish 
a remedy coextensive with the mischief the legislature have passed 
an act, confirming the matrimonial engagements supposed to have 
been formed and giving to them validity as if the existing law had 
precisely been observed. The act intrinsically imports that the 
legislature considered the law of May, 1820, to be conformable to 
justice, and within the sphere of their authority. It was no viola¬ 
tion of the Constitution; it was not a novelty; such exercise of 
power having been frequent, and the subject of universal acquies¬ 
cence; and no injustice can arise from having given legal efficacy 
to voluntary engagements, and from accompanying them with the 
consequences, which they always impart. ^ ^ ^ 

New trial denied.^ 

[Peters, J., thought the act unconstitutional, but concurred in 
the result on other grounds.] 

2 In Mech. Sav. Bank v. Allen, 28 Conn. 97, 102 (1859), in upholding a stat¬ 
ute validating certain prior loans where usury had been innocently commit¬ 
ted, McCurdy, J., said: “This subject was thoroughly investigated in the 


RETROACTIVE LAWS 


495 


UNITED STATES v. HEINSZEN (1907) 206 U. S. 370, 382, 
386, 387, 27 Sup. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688, Mr. Jus¬ 
tice White (upholding a federal statute of 1906, ratifying the col¬ 
lection of tariff duties illegally imposed upon imports into the Phil- 
ippine Islands between 1899 and 1902, and passed while this suit 
was pending to recover them as paid under protest) : 

“That where an agent, without precedent authority, has exer¬ 
cised, in the name of a principal, a power which the principal had 
the capacity to bestow, the principal may ratify and affirm the un¬ 
authorized act, and thus retroactively give it validity when rights 
of third persons have not intervened, is so elementary as to need 
but statement. That the power of ratification as to matters with¬ 
in their authority may be exercised by Congress, state govern¬ 
ments, or municipal corporations, is also elementary. * * * 

[Here are discussed Hamilton v. Dillin, 21 Wall. 73, 22 L. Ed. 528, 
and Mattingly v. Dist. Columbia, 97 U. S. 687, 24 L. Ed. 1098.] 

“It is urged that the ratifying statute cannot be given effect 
without violating the fifth amendment to the Constitution, since 
to give efficacy to the act would deprive the claimants of their 
property without due process of law, or would appropriate the 
same for public use without just compensation. This rests upon 
these two contentions: It is said that the money paid to discharge 
the illegally exacted duties after payment, as before, 'justly and 
equitably belonged’ to the claimants, and that the title thereto con¬ 
tinued in them as a vested right of property. It is consequently in¬ 
sisted that the right to recover the money could not be taken away 
without violating the fifth amendment, as stated. But here, again, 
the argument disregards the fact that when the duties were illegal¬ 
ly exacted in the name of the United States Congress possessed 
the power to have authorized their imposition in the mode in which 
they were enforced, and hence, from the very moment of collection, 
a right in Congress to ratify the transaction, if it saw fit to do so, 
was engendered. In other words, as a necessary result of the 
power to ratify, it followed that the right to recover the duties in 
question was subject to the exercise by Congress of its undoubted 
power to ratify. ♦ ♦ jk 

case of Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121, and the questions 
now raised were elaborately discussed and were supposed to be settled. The 
retroactive law objected to in that case was far more extensive in its effects 
than the statute of 1856. It made husbands and wives of persons who, ex¬ 
cept for its provisions, were single. It made children legitimate who were 
otherwise bastards. It altered settlements, and conferred new rights, and 
imposed new duties and restrictions upon towns and individuals. It changed 
lines of descent and deranged rules of property. The principle adopted was, 
in substance, that when a statute is expressly retroactive, and the object and 
effect of it is to correct an innocent mistake, remedy a mischief, execute the 
intention of parties, and promote justice, then, both as a matter of right 
and of public policy affecting the peace and welfare of the community, the 
law should be sustained.” 


496 


RETROACTIVE LAWf 


“But if it be conceded that the claim to a return of the moneys 
paid in discharge of the exacted duties was, in a sense, a vested 
right, it in principle, as we have already observed, would be but the 
character of right referred to by Kent in his Commentaries, where, 
in treating of the validity of statutes retroactively operating on cer¬ 
tain classes of rights, it is said (vol. 2, pp. 415, 416) : ‘The legal 
rights affected in those cases by the statutes were deemed to have 
been vested subject to the equity existing against them, and which 
the statutes recognized and enforced. Goshen v. Stonington, 4 
Conn. 209, 10 Am. Dec. 121; Wilkinson v. Leland, 2 Pet. 627, 7 L. 
Ed. 542; Langdon v. Strong, 2 Vt. 234; Watson v. Mercer, 8 Pet. 
88, 8 L. Ed. 876; 3 Story, Const. 267.' 

“Nor does the mere fact that, at the time the ratifying statute 
was enacted, this action was pending for the recovery of the sums 
paid, cause the statute to be repugnant to the Constitution. The 
mere commencement of the suit did not change the nature of the 
right. Hence again, if it be conceded that the capacity to prosecute 
the pending suit to judgment was, in a sense, a vested right, cer¬ 
tainly also the power of the United States to ratify was, to say the 
least, a right of as high a character. * * * 

“Considering how far the bringing of actions would operate to 
deprive government of the power to enact curative statutes which, 
if the actions had not been brought, would have been unquestion¬ 
ably valid, Cooley, in his Constitutional Limitations, says (7th Ed. 
p. 543) : * * * ‘The bringing of suit vests in a party no right 

to a particular decision, and his case must be determined on the law 
as it stands, not when the suit was brought, but when the judg¬ 
ment is rendered.'" 

[Brewer and Peckham, JJ., dissented. Moody, J., did not sit. 
Harlan, J., concurred solely on the ground that the ratifying act 
should be construed as withdrawing the consent of the United 
States to be sued in the Court of Claims for said duties paid under 
protest, leaving the personal liability of the collector to be deter¬ 
mined.] 


APPENDIX 


[CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA]' 


We the People of the United States, in Order to form a more perfect Union, 
establish Justice, insure domestic Tranquility, provide for the common 
defence, promote the general Welfare, and secure the Blessings of Liberty 
to ourselves and our Posterity, do ordain and establish this Constitution 
for the United States of America. 

ARTICLE. I. 

Section. 1. All legislative Powers herein granted shall be vested in a Con¬ 
gress of the United States, which shall consist of a Senate and House of Rep¬ 
resentatives. 

Section. 2. [1.] The House of Representatives shall be composed of Mem¬ 
bers chosen every second Year by the People of the several States, and the 
Electors in each State shall have the Qualifications requisite for Electors of 
the most numerous Branch of the State Legislature. 

[2.] No Person shall be a Representative who shall not have attained to 
the Age of twenty five Years, and been seven Years a Citizen of the United 
States, and who shall not, when elected, be an Inhabitant of the State in 
which he shall be chosen. 

[3.] Representatives and direct Taxes shall be apportioned among the sev¬ 
eral States which may be included within this Union, according to their 
respective Numbers, which shall be determined by adding to the whole Num¬ 
ber of free Persons, including those bound to Service for a Term of Years, 
and excluding Indians not taxed, three fifths of all other Persons. 2 The 
actual Enumeration shall be made within three Years after the first Meeting of 
the Congress of the United States, and within every subsequent Term of ten 
Years, in such Manner as they shall by Law direct. The Number of Repre- 

1 This copy of the Constitution (through Amendment XV) is reprinted from American 
History Leaflet No. 8, published by Parker P. Simmons, New York City. It was prepare ! 
by Professors Albert B. Hart and Edward Channing, of Harvard University; and is stated 
to be the result of a careful comparison with the original manuscripts of the Constitution 
and Amendments on February 10, 11, 1893, and to be intended to be absolutely exact in 
word, spelling, capitalization, and punctuation. It is here used by permission of the edi¬ 
tors and publisher. One error in spelling and one in paragraphing have been corrected by 
a comparison with the fac-simile text of the Constitution published in Carson’s History of 
the Celebration of the 100th Anniversary of the Constitution, and the signatures of the 
signers have also been corrected by this text. Three of the editors’ original notes are re¬ 
tained, marked “EcZ.” The other notes are by the editor of this Casebook. The words and 
figures inclosed in brackets do not appear in the original manuscripts and are inserted for 
convenience of reference, most of them being thus used in Leaflet No. 8. The text of 
Amendments XVI and XVH has been taken from the official certifications of adoption is¬ 
sued by Secretaries of State Knox and Bryan on February 25, 1913, and on May 31, 1913. 

2 Superseded by Amend. XIV, [§ 21.—Ed. 

Hall Cases Const.L. —32 (497) 



498 


APPENDIX—U. S. CONSTITUTION 


sentatives shall not exceed one for every thirty Thousand, but each State 
shall have at Least one Representative; and until such enumeration shall be 
made, the State of New Hampshire shall be entitled to chuse three, Massa¬ 
chusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, 
New-York six. New Jersey four, Pennsylvania eight, Delaware one, Mary¬ 
land six, Virginia ten. North Carolina five. South Carolina five, and Georgia 
three. 

[4.] When vacancies happen in the Representation from any State, the 
Executive Authority thereof shall issue Writs of Election to fill such Vacan¬ 
cies. 

[5.] The House of Representatives shall chuse their Speaker and other OflB- 
cers; and shall have the sole Power of Impeachment. 

Section. 3. [1.] The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for six Years; 
and each Senator shall have one Vote. 3 

[2.] Immediately after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. The 
Seats of the Senators of the first Class shall be vacated at the Expiration of 
the second Year, of the second Class at the Expiration of the fourth Year, 
and of the third Class at the Expiration of the sixth Year, so that one third 
may be chosen every second Year; and if Vacancies happen by Resignation, 
or otherwise, during the Recess of the Legislature of any State, the Execu¬ 
tive thereof may make temporary Appointments until the next Meeting of the 
Legislature, which shall then fill such Vacancies. 

[3.] No Person shall be a Senator who shall not have attained to the Age 
of thirty Years, and been nine Years a Citizen of the United States, and who 
shall not, when elected, be an Inhabitant of that State for which he shall be 
chosen. 

[4.] The Vice President of the United States shall be President of the 
Senate, but shall have no Vote, unless they be equally divided. 

[5.] The Senate shall chuse their other Officers, and also a President pro 
tempore, in the Absence of the Vice President, or when he shall exercise the 
Office of President of the United States. 

[6.] The Senate shall have the sole Power to try all Impeachments. When 
sitting for that Purpose, they shall be on Oath or Affirmation. When the 
President of the United States is tried, the Chief Justice shall preside; And 
no Person shall be convicted without the Concurrence of two thirds of the 
Members present. 

[7.] Judgment in Cases of Impeachment shall not extend further than to 
removal from Office, and disqualification to hold and enjoy any Office of 
lionor. Trust or Profit under the United States: but the Party convicted shall 
nevertheless be liable and subject to Indictment, Trial, Judgment and Pun¬ 
ishment, according to Law. 

Section. 4. [1.] The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each State by the Legis¬ 
lature thereof; but the Congress may at any time by Law make or alter 
such Regulations, except as to the Places of chusing Senators. 

[2.] The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in December, unless they shall by Law 
appoint a different Day. 

Section. 5. [1.] Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own Members, and a Majority of each shall consti¬ 
tute a Quorum to do Business; but a smaller Number may adjourn from day 
to day, and may be authorized to compel the attendance of absent Members, 
in such Manner, and under such Penalties as each House may provide. 

3 Superseded by Amend. XVII. 



APPENDIX—U. 8. CONSTITUTION 


499 


[2.] Each House may determine the Rules of its Proceedings, punish its 
Members for Disorderly Behaviour, and, with the Concurrence of two thirds, 
expel a Member. 

[3.] Each House shall keep a Journal of its Proceedings, and from time to 
time publish the same, excepting such Parts as may in their Judgment require 
Secrecy; and the Yeas and Nays of the Members of either House on any 
question shall, at the Desire of one fifth of those Present, be entered on the 
Journal. 

[4.] Neither House, during the Session of Congress, shall, without the Con¬ 
sent of the other,* adjourn for more than three days, nor to any other Place 
than that in which the tw^o Houses shall be sitting. 

Section. 6. [1.] The Senators and Representatives shall receive a Compensa¬ 
tion for their Services, to be ascertained by Law, and paid out of the Treas¬ 
ury of the United States. They shall in all Cases, except Treason, Felony and 
Breach of the Peace, be privileged from Arrest during their Attendance at 
the Session of their respective Houses, and in going to and returning from 
the same; and for any Speech or Debate in either House, they shall not be 
questioned in any other Place. 

[2.] No Senator or Representative shall, during the Time for which he was 
elected, be appointed to any civil Office under the Authority of the United 
States, which shall have been created, or the Emoluments whereof shall have 
been encreased during such time; and no Person holding any Office under 
the United States, shall be a member of either House during his Continuance 
in Office. 

Section. 7. [1.] All Bills for raising Revenue shall originate in the House 
of Representatives; but the Senate may propose or concur with Amendments 
as on other Bills. 

[2.] Every Bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a Law, be presented to the President of 
the United States; If he approve he shall sign it, but if not he shall return 
it, with his Objections to that House in which it shall have originated, who 
shall enter the Objections at large on their Journal, and proceed to recon¬ 
sider it. If after such Reconsideration two thirds of that House shall agree 
to pass the Bill, it shall be sent, together with the Objections, to the other 
House, by which it shall likewise be reconsidered, and if approved by two 
thirds of that House, it shall become a Law. But in all such Cases the Votes 
of both Houses shall be determined by yeas and Nays, and the Names of the 
Persons voting for and against the Bill shall be entered on the Journal of 
each House respectively. If any Bill shall not be returned by the President 
within ten Days (Sundays excepted) after it shall have been presented to him, 
the same shall be a Law, in like Manner as if he had signed it, unless the 
Congress by their Adjournment prevent its Return, in which Case it shall not 

be a Law. 

[3.] Every Order, Resolution, or Vote to which the Concurrence of the Sen¬ 
ate and House of Representatives may be necessary (except on a question of 
Adjournment) shall be presented to the President of the United States; and 
before the same shall take Effect, shall be approved by him, or being disap¬ 
proved by him, shall be repassed by two thirds of the Senate and House of 
Representatives, according to the Rules and Limitations prescribed in the 
Case of a Bill. 

Section. 8. The Congress shall have Power [1.] To lay and collect Taxes, 
Duties, Imposts and Excises, to pay the Debts and provide for the common 
Defence and general Welfare of the United States; but all Duties, Imposts 
and Excises shall be uniform throughout the United States i 

[2.] To borrow Money on the credit of the United States; 


500 


APPENDIX—U. S. CONSTITUTION 


[3.] To regulate Commerce with foreign Nations, and among the several 
States, and with the Indian Tribes; 

[4.] To establish an uniform Rule of Naturalization, and uniform Laws on 
the subject of Bankruptcies throughout the United States; 

[5.] To coin Money, regulate the Value thereof, and of foreign Coin, and 
fix the Standard of Weights and Measures; 

[6.] To provide for the Punishment of counterfeiting the Securities and 
current Coin of the United States; 

[7.] To establish Post Offices and post Roads; 

[8.] To promote the Progress of Science and useful Arts, by securing for 
limited Times to Authors and Inventors the exclusive Right to their respec¬ 
tive Writings and Discoveries; 

[9.] To constitute Tribunals inferior to the supreme Court; 

[10.] To define and punish Piracies and Felonies committed on the high 
Seas, and Offences against the Law of Nations; 

[11.] To declare War, grant Letters of Marque and Reprisal, and make 
Rules concerning Captures on Land and Water; 

[12.] To raise and support Armies, but no Appropriation of Money to that 
Use shall be for a longer Term than two Years; 

[13.] To provide and maintain a Navy; 

[14.] To make Rules for the Government and Regulation of the land and 
naval Forces; 

[15.] To provide for calling forth the Militia to execute the Laws of the 
Union, suppress Insurrections and repel Invasions; 

[16.] To provide for organizing, arming, and disciplining, the Militia, and 
for governing such Part of them as may be employed in the Service of the 
United States, reserving to the States respectively, the Appointment of the 
Officers, and the Authority of training the Militia according to the discipline 
prescribed by Congress; 

[17.] To exercise exclusive Legislation in all Cases whatsoever, over such 
District (not exceeding ten Miles square) as may, by Cession of particular 
States, and the Acceptance of Congress, become the Seat of the Government 
of the United States, and to exercise like Authority over all Places purchased 
by the Consent of the Legi.slature of the State in which the same shall be, 
for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful 
Buildings;—And 

[IS.] To make all Laws which shall be necessary and proper for carrying 
into Execution the foregoing Powers, and all other Powers vested by this 
Constitution in the Government of the United States, or in any Department 
or Officer thereof. 

Section. 9. [1.] The Migration or Importation of such Persons as any of 
the States now existing shall think proper to admit, shall not be prohibited 
by the Congress prior to the Year one thousand eight hundred and eight, but 
a Tax or duty may be imposed on such Importation, not exceeding ten dollars 
for each Person. 

[2.] The Privilege of the Writ of Habeas Corpus shall not be suspended, 
unless when in Cases of Rebellion or Invasion the public Safety may re¬ 
quire it. 

[3.] No Bill of Attainder or ex post facto Law shall be passed. 

[4.] No Capitation, or other direct. Tax shall be laid, unless in Proportion 
to the Census or Enumeration herein before directed to be taken. 

[5.] No Tax or Duty shall be laid on Articles exported from any State. 

[6.] No Preference shall be given by any Regulation of Commerce or Rev¬ 
enue to the Ports of one State over those of another: nor shall Vessels bound 
to, or from, one State, be obliged to enter, clear or pay Duties in another. 

[7.] No Money shall be drawn from the Treasury, but in Consequence of 


APPENDIX—U. S. CONSTITUTION 


501 


Appropriations made by Law; and a regular Statement and Account of tbe 
l^eceipts and Expenditures (jf all public Money shall be published from time 
to time. 

[8.] No Title of Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall, without the 
Consent of the Congress, accept of any present. Emolument, Office, or Title, of 
any kind whatever, from any King, Prince, or foreign State. 

Section. 10. [1.] No State shall enter into any Treaty, Alliance, or Confed¬ 
eration ; grant Letters of Marque and Reprisal; coin Money; emit Bills of 
Credit; make any Thing but gold and silver Coin a Tender in Payment of 
Debts, pass any Bill of Attainder, ex post facto Law, or Law impairing the 
Obligations of Contracts or grant any Title of Nobility. 

[2.] No State shall, without the Consent of the Congress, lay any Imposts 
or Duties on Imports or Exports, except what may be absolutely necessary 
for executing its'inspection Laws: and the net Produce of all Duties and 
Imposts, laid by any State on Imports or Exports, shall be for the Use of the 
Treasury of the United States; and all such Laws shall be subject to the 
Revision and Controul of the Congress. 

[3.] No State shall, without the Consent of Congress, lay any Duty of Ton- 
nage, keep Troops, or Ships of War in time of I’eace, enter into any Agree¬ 
ment or Compact with another State, or with a foreign Power, or engage in 
War, unless actually invaded, or in such imminent Danger as will not admit 
of delay. 

ARTICLE. II. 

Section. 1. [1.] The executive Power shall be vested in a President of the 
United States of America. He shall hold his Office during the Term of four 
Years, and, together with the Vice President, chosen for the same Term, be 
elected, as follows 

[2.] Each State shall appoint, in such Manner as the Legislature thereof 
may direct, a Number of Electors, equal to the whole Number of Senators 
and Representatives to which the State may be entitled in the Congress: but 
no Senator or Representative, or Person holding an Office of Trust or Profit 
under the United States, shall be appointed an Elector. 

[3.] The Electors shall meet in their respective States, and vote by Ballot 
for two Persons, of whom one at least shall not be an Inhabitant of the same 
State with themselves. And they shall make a List of all the Persons voted 
for, and of the Number of Votes for each; which List they shall sign and 
certify, and transmit sealed to the Seat of the Government of the United 
States, directed to the President of the Senate. The President of the Senate 
shall, in the Presence of the Senate and House of Representatives, open all 
the Certificates, and the Votes shall then be counted. The Person having the 
greatest Number of Votes shall be the President, ’f such Number be a Major¬ 
ity of the whole Number of Electors appointed; and if there be more than 
one wffio have such Majority, and have an equal Number of Votes, then the 
House of Representatives shall immediately chuse by Ballot one of them for 
President; and if no Person have a Majority, then from the five highest on 
the List the said House shall in like Manner chuse the President. But in 
chusing the President, the Votes shall be taken by States, the Representation 
from each State having one Vote; A quorum for this Purpose shall consist 
of a Member or Members from two thirds of the States, and a Majority of 
all the States shall be necessary to a Choice. In every Case, after the Choice 
of the President, the Person having the greatest Number of Votes of the Elec¬ 
tors shall be the Vice President. But if there should remain two or more who 
have equal Votes, the Senate shall chuse from them by Ballot the Vice Presi¬ 
dent. ^ 

4 Superseded by Amend. XII.— Ed. 


502 


APPENDIX—U. S. CONSTITUTION 


[4.] The Congress may determine the Time of chusing the Electors, and the 
Day on which they shall give their Votes; which Day shall be the same 
throughout the United States. 

[5.] No Person except a natural born Citizen, or a Citizen of the United 
States, at the time of the Adoption of this Constitution, shall be eligible to 
the Office of President; neither shall any Person be eligible to that Office 
who shall not have attained to the Age of thirty five Years, and been fourteen 
Years a Resident within the United States. 

[6.] In Case of the Removal of the President from Office, or of his Death, 
Resignation, or Inability to discharge the Powers and Duties of the said 
Office, the Same shall devolve on the Vice President, and the Congress may 
by Law provide for the Case of Removal, Death, Resignation, or Inability, 
both of the President and Vice President, declaring what Officer shall then 
act as President, and such Officer shall act accordingly, until the Disability 
be removed, or a President shall be elected. 

[7.] The President shall, at stated Times, receive for his Services, a Com¬ 
pensation, which shall neither be encreased nor diminished during the Period 
for which he shall have been elected, and he shall not receive within that 
Period any other Emolument from the United States, or any of them. 

[8.] Before he enter on the Execution of his Office, he shall take the fol¬ 
lowing Oath or Affirmation:—“I do solemnly swear (or affirm) that I will 
faithfully execute the Office of President of the United States, and will to the 
best of my Ability, preserve, protect and defend the Constitution of the 
United States.” 

Section. 2. [1.] The President shall be Commander in Chief of the Army 
and Navy of the United States, and of the Militia of the Several States, when 
called into the actual Service of the United States; he may require the Opin¬ 
ion, in writing, of the principal Officer in each of the executive Departments, 
upon any Subject relating to the Duties of their respective Offices, and he 
shall have Power to grant Reprieves and Pardons for Offences against the 
United States, except in Cases of Impeachment. 

[2.] He shall have Power, by and with the Advice and Consent of the Sen¬ 
ate, to make Treaties, provided two thirds of the Senators present concur; 
and he shall nominate, and by and with the Advice and Consent of the Sen¬ 
ate, shall appoint Ambassadors, other public Ministers and Consuls, Judges 
of the supreme Court, and all other Officers of the United States, whose 
Appointments are not herein otherwise provided for, and which shall be estab¬ 
lished by Law: but the Congress may by Law vest the Appointment of such 
inferior Officers, as they think proper, in the President alone, in the Courts 
of Law, or in the Heads of Departments. 

[3.] The President shall have Power to fill up all Vacancies that may hap¬ 
pen during the Recess of the Senate, by granting Commissions which shall 
expire at the End of their next Session. 

Section. 3. He shall from time to time give to the Congress Information 
of the State of the Union, and recommend to their Consideration such Meas¬ 
ures as he shall judge necessary and expedient; he may, on extraordinary 
Occasions, convene both Houses, or either of them, and in Case of Disagree¬ 
ment between them, with Respect to the Time of Adjournment, he may 
adjourn them to such Time as he shall think proper; he shall receive Ambas¬ 
sadors and other public Ministers; he shall take Care that the Laws be faith¬ 
fully executed, and shall Commission all the Officers of the United States. 

Section. 4. The President, Vice President and all civil Officers of the 
United States, shall be removed from Office on Impeachment for, and Convic¬ 
tion of, Treason, Bribery, or other high Crimes and Misdemeanors. 


APPENDIX—U. S. CONSTITUTION 


603 


ARTICLE. III. 

Section. 1. The judicial Power of the United States, shall be vested in 
one supreme Court, and in such inferior Courts as the Congress may from 
time to time ordain and establish. The Judges, both of the supreme and in¬ 
ferior Courts, shall hold their Offices during good Behaviour, and shall, at 
stated Times, receive for their Services, a Compensation, which shall not be 
diminished during their Continuance in Office. 

Section. 2. [1.] The judicial Power shall extent to all Cases, in Law and 
Equity, arising under this Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, under their Authority;—to all Cases 
affecting Ambassadors, other public Ministers and Consuls;—to all Cases of 
admiralty and maritime Jurisdiction;—to Controversies to which the United 
States shall be a Party;—to Controversies between two or more States;— 
between a State and Citizens of another State —between Citizens of differ¬ 
ent States,—between Citizens of the same State claiming Lands under Grants 
of different States, and between a State, or the Citizens thereof, and foreign 
States, Citizens or Subjects. 

[2.] In all Cases affecting Ambassadors, other public Ministers and Consuls, 
and those in which a State shall be Party, the supreme Court shall have orig¬ 
inal Jurisdiction. In all the other Cases before mentioned, the supreme Court 
shall have appellate Jurisdiction, both as to Law and Fact, with such Excep¬ 
tions, and under such Regulations as the Congress shall make. 

[3.] The Trial of all Crimes, except in Cases of Impeachment, shall be by 
Jury; and such Trial shall be held in the State where the said Crimes shall 
have been committed; but when not committed within any State, the Trial 
shall be at such Place or Places as the Congress may by Law have directed. 

Section. 3. [1.] Treason against the United States, shall consist only in 
levying War against them, or in adhering to their Enemies, giving them Aid 
and Comfort. No Person shall be convicted of Treason unless on the Testi¬ 
mony of two Witnesses to the same overt Act, or on Confession in open Court. 

[2.] The Congress shall have Power to declare the Punishment of Treason, 
but no Attainder of Treason shall work Corruption of Blood, or Forfeiture 
except during the Life of the Person attainted. 

ARTICLE. IV. 

Section. 1. Full Faith and Credit shall be given in each State to the pub¬ 
lic Acts, Records, and judicial Proceedings of every other State. And the 
Congress may by general Laws prescribe the Manner in which such Acts, 
Records and Proceedings shall be proved, and the Effect thereof. 

Section. 2. [1.] The Citizens of each State shall be entitled to all Privileges 
and Immunities of Citizens in the several States. 

[2.] A Person charged in any State with Treason, Felony, or other Crime, 
who shall flee from Justice, and be found in another State, shall on Demand 
of the executive Authority of the State from which he fled, be delivered up, 
to be removed to the State having Jurisdiction of the Crime. 

[3.] No Person held to Service or Labour in one State, under the Laws 
thereof, escaping into another, shall, in Consequence of any Law or Regula¬ 
tion therein, be discharged from such Service or Labour, but shall be de¬ 
livered up on Claim of the Party to whom such Service or Labour may be due. 

Section. 3. [1.] New States may be admitted by the Congress into this Un¬ 
ion ; but no new State shall be formed or erected within the Jurisdiction of 
any’ other State; nor any State be formed by the Junction of two or more 
States, or Parts of States, without the Consent of the Legislatures of the 
States concerned as well as of the Congress. 


6 See Amend. XI. 


504 


APPENDIX—U. S. CONSTITUTION 


[2.] The Congress shall have Power to dispose of and make all needful 
Rules and Regulations respecting the Territory or other Property belonging 
to the United States; and nothing in this Constitution shall be so construed 
as to Prejudice any Claims of the United States, or of any particular State. 

Section. 4. The United States shall guarantee to every State in this Un¬ 
ion a Republican Form of Government, and shall protect each of them against 
Invasion; and on Application of the Legislature, or of the Executive (when 
the Legislature cannot be convened) against domestic Violence. 


ARTICLE. V. 

The Congress, whenever two thirds of both Houses shall deem it necessary, 
shall propose Amendments to this Constitution, or, on the Application of the 
Legislatures of two thirds of the several States, shall call a Convention for 
proposing Amendments, which, in either Case, shall be valid to all Intents and 
Purposes, as Part of this Constitution, when ratified by the Legislatures of 
three fourths of the several States, or by Conventions in three fourths thereof, 
as the one or the other Mode of Ratification may be proposed by the Con¬ 
gress; Provided that no Amendment which may be made prior to the Year 
One thousand eight hundred and eight shall in any Manner affect the first 
and fourth Clauses in the Ninth Section of the first Article; and that no 
State, without its Consent, shall be deprived of its equal Suffrage in the 
Senate. 

ARTICLE. VI. 

[1.] All Debts contracted and Engagements entered into, before the Adop¬ 
tion of this Constitution, shall be as valid against the United States under 
this Constitution, as under the Confederation. 

[2.] This Constitution, and the Laws of the United States which shall be 
made in Pursuance thereof; and all Treaties made, or which shall be made, 
under the Authority of the United States, shall be the supreme Law of the 
Land; and the Judges in every State shall be bound thereby, any Thing in 
the Constitution or Laws of any State to the Contrary notwithstanding. 

[3.] The Senators and Representatives before mentioned, and the Members 
of the several State Legislatures, and all executive and judicial Officers, both 
of the United States and of the several States, shall be bound by Oath or 
Affirmation, to support this Constitution; but no religious Test shall ever be 
required as a Qualification to any Office or public Trust under the United 
States. 

ARTICLE. VII. 


The Ratification of the Conventions of nine States, shall be sufficient for 
the Establishment of this Constitution between the States so ratifying the 
Same.6 


[Note of the draughtsman 
as to interlineations in the 
text of the manuscript.] 
Attest 

William Jackson 

Secretary. 


done in Convention by the Unanimous Consent of the 
States present the Seventeenth Day of September in the 
Year of our Lord one thousand seven hundred and 
Eighty seven and of the Independence of the United 
States of America the Twelfth In Witness whereof 
We have hereunto subscribed our names. 

Go WASHINGTON— 
Presidt and deputy from Virginia. 


[Here follow the names of 38 deputies representing all of the 13 states ex¬ 
cept Rhode Island.] 


6 The states ratified the Constitution in the following order: 


Delaware.December 7, 1787 

Pennsylvania.December 12, 1787 

New Jersey.December 18, 1787 

Georgia.January 2, 1788 

Connecticut.January 9, 1788 

Massachusetts.February 6, 1788 

Maryland.April 26, 1788 

By an act of September 13, 1788, the Congress of the Confederation appointed the first 
Wednesday in January next for the appointment of presidential electors in the states that 


South Carolina......May 23, 1788 

New Hampshire.June 21, 1788 

Virginia.June 26, 1788 

New York.... July 26, 1788 

North Carolina.November 21, 1789 

Rhode Island.May 29, 1790 















APPENDIX—U. 8. CONSTITUTION 


505 


ARTICLES in addition to and Amendment of the Constitution of the United 
States of America, proposed by Congress, and ratified by the Legislatures 
of the several States, pursuant to the fifth Article of the original Constitu¬ 
tion, 7 

[ARTICLE L]« 

Congress shall make no law respecting an establishment of religion, or pro¬ 
hibiting the free exercise thereof; or abridging the freedom of speech, or of 
the press; or the right of the people peaceably to assemble, and to petition 
the Government for a redress of grievances. 

[ARTICLE IL] 

A well regulated Militia, being necessary to the security of a free State, 
the right of the people to keep and bear Arms, shall not be infringed. 

[ARTICLE III.] 

No Soldier shall, in time of peace be quartered in any house, without the 
consent of the Owner, nor in time of war, but in a manner to be prescribed 
by law. 

[ARTICLE IV.] 

The right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be violated, and 
no Warrants shall issue, but upon probable cause, supported by Oath or af¬ 
firmation, and particularly describing the place to be searched, and the per¬ 
sons or things to be seized. 

[ARTICLE V.] 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a Grand Jury, except in cases 
arising in the land or naval forces, or in the Militia, when in actual service 
in time of War or public danger; nor shall any person be subject for the 
same offence to be twice put in jeopardy of life or limb; nor shall be com¬ 
pelled in any criminal case to be a witness against himself, nor be deprived 
of life, liberty, or property, without due process of law; nor shall private 
property be taken for public use, without just compensation. 

[ARTICLE' VL] 

In all criminal prosecutions the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the State and district wherein the 
crime shall have been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and cause of the ac¬ 
cusation ; to be confronted with the witnesses against him; to have compul¬ 
sory process for obtaining witnesses in his favor, and to have the Assistance 
of Counsel for his defence. 

had by then ratified the Constitution; the first Wednesday in February for the electors to 
assemble and vote for president; and the first Wednesday in March for commencing pro¬ 
ceedings under the Constitution. On the latter date, March 4, 1789, the Constitution became 
legally operative, Owings v. Speed, 5 Wheat. 420, 15 L. Ed. 124 (1820); though in fact the 
House of Representatives did not assemble, for want of a quorum, until April 1, and the 
Senate not until April 6; and President Washington was not inaugurated until April 30. 

7 This heading appears only in the joint resolution submitting the first ten amendments 
[1 Stat. 97].—Ed. 

8 The first 10 amendments were proposed by Congress on September 25, 1789, and became 
effective on December 15, 1791. 


506 


APPENDIX—U. S. CONSTITUTION 


[ARTICLE VIL] 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and no fact tried by a 
jury shall be otherwise re-examined in any Court of the United States, than 
according to the rules of the common law. 

[ARTICLE VIIL] 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. 

[ARTICLE IX.] 

The enumeration in the Constitution, of certain rights, shall not be con¬ 
strued to deny or disparage others retained by the people. 

[ARTICLE X.] 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to 
the people. 

[ARTICLE XI.]» 

The Judicial power of the United States shall not be construed to extend 
to any suit in law or equity, commenced or prosecuted against one of the 
United States by Citizens of another State, or by Citizens or Subjects of any 
Foreign State. 

[ARTICLE XII.] 

The Electors shall meet in their respective states, and vote by ballot for 
President and Vice-President, one of whom, at least, shall not be an inhab¬ 
itant of the same state with themselves; they shall name in their ballots the 
person voted for as President, and in distinct ballots the person voted for as 
Vice-President, and they shall make distinct lists of all persons voted for as 
President, and of all persons voted for as Vice-President, and of the number 
of votes for each, which lists they shall sign and certify, and transmit sealed 
to the seat of the government of the United States, directed to the President 
of the Senate;—The President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certificates and the votes 
shall then be counted;—The person having the greatest number of votes for 
President, shall be the President, if such number be a majority of the whole 
number of Electors appointed; and if no person have such majority, then 
from the persons having the highest numbers not exceeding three on the list 
of those voted for as President, the House of Representatives shall choose 
immediately, by ballot, the President. But in choosing the President, the 
votes shall be taken by states, the representation from each state having one 
vote; a quorum for this purpose shall consist of a member or members 
from two-thirds of the states, and a majority of all the states shall be neces¬ 
sary to a choice. And if the House of Representatives shall not choose a 
President whenever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the Vice-President shall act as 
President, as in the case of the death or other constitutional disability of 
the President.—The person having the greatest number of votes as Vice-Presi- 

9 The eleventh amendment was proposed by Congress on March 4, 1794, and became ef¬ 
fective on February 7, 1795. 

10 The twelfth amendment was proposed by Congress on December 8, 1803, and became 
effective either on June 15 or July 27, 1804, probably upon the former date. 


APPENDIX—U. S. CONSTITUTION 


507 


dent, shall be the Vice-President, if such number be a majority of the whole 
number of Electors appointed, and if no person have a majority, then from 
the two highest numbers on the list, the Senate shall choose the Vice-Presi¬ 
dent ; a quorum for the purpose shall consist of two-thirds of the whole num¬ 
ber of Senators, and a majority of the whole number shall be necessary to 
a choice. But no person constitutionally ineligible to the office of President 
shall be eligible to that of Vice-President of the United States. 

ARTICLE XIIL“ 

Section 1. Neither slavery nor involuntary servitude, except as a pun¬ 
ishment for crime whereof the party shall have been duly convicted, shall 
exist within the United States, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by appro¬ 
priate legislation. 

ARTICLE XIV.i" 

Section 1. All persons born or naturalized in the United States, and sub¬ 
ject to the jurisdiction thereof, are citizens of the United States and of the 
State wherein they reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the United States; 
nor shall any Sta'te deprive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its jurisdiction the equal 
protection of the laws. 

Section 2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of per¬ 
sons in each State, excluding Indians not taxed. But when the right to 
vote at any election for the choice of electors for President and Vice Presi¬ 
dent of the United States, Representatives in Congress, the Executive and 
Judicial officers of a State, or the members of the Legislature thereof, is 
denied to any of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any way abridged, 
except for participation in rebellion, or other crime, the basis of representa¬ 
tion therein shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

Section 3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice President, or hold any office, civil or military, 
under the United States, or under any State, who, having previously taken 
an oath, as a member of Congress, or as an officer of the United States, or as 
a member of any State legislature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the same, or given aid or com¬ 
fort to the enemies thereof. But Congress may by a vote of two-thirds of 
each House, remove such disability. 

Section 4. The validity of the public debt of the United States, author¬ 
ized by law, including debts incurred for payment of pensions and bounties 
for services in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any debt or 
obligation incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave; but all such 
debts, obligations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 

11 The thirteenth amendment was proposed by Congress on January SI, 1865, and became 
effective on December 9, 1865. 

12 The fourteenth amendment was proposed by Congress on June 13, 1866, and became af¬ 
fective either on July 9 or July 21, 1868. 


508 


APPENDIX—U. 8. CONSTITUTION 


ARTICLE XV.^* 

Section 1. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State on account of race, 
color, or previous condition of servitude.— 

Section 2. The Congress shall have power to enforce this article by 
appropriate legislation.— 

ARTICLE XVI.^* 

The Congress shall have power to lay and collect taxes on incomes, from 
whatever source derived, without apportionment among the several States, 
and without regard to any census or enumeration. 

[ARTICLE XVIL]^® 

The Senate of the United States shall be composed of two Senators from 
each State, elected by the people thereof, for six years; and each Senator 
shall have one vote. The Electors in each State shall have the qualifications 
requisite for electors of the most numerous branch of the State legislatures. 

When vacancies happen in the representation of any State in the Senate, 
the executive authority of such State shall issue writs of election to fill such 
vacancies; Provided, That the legislature of any State may empower the 
executive thereof to make temporary appointments until the people fill the 
vacancies by election as the legislature may direct. 

This amendment shall not be so construed as to affect the election or term 
of any Senator chosen before it becomes valid as part of the Constitution. 

13 The fifteenth amendment was proposed by Congress on February 26, 1869, and became 
effective either on February 3 or February 17, 1870. 

14 The sixteenth amendment was proposed by Congress on July 12, 1909, and became ef¬ 
fective on February 3, 1913. 

15 The seventeenth amendment was proposed by Congress on May 13, 1912, and became 
effective on May 9, 1913. 


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